Sentencing Law and Policy

Tennessee completes execution of Stephen West using electric chair

Following the denial of his last legal appeals by the US Supreme Court, Stephen West was executed tonight by the state of Tennessee.  This local article provides these details:

Tennessee executed death row inmate Stephen Michael West Thursday night, marking the third time the state has used the electric chair in less than a year.  He was pronounced dead at 7:27 p.m. CDT, according to the Tennessee Department of Correction.  He was 56.

West was sentenced to death for the 1986 stabbing deaths of Wanda Romines, 51, and her 15-year-old daughter, Sheila Romines, in their East Tennessee home.  He also was convicted of raping Sheila.  Experts said the women had been tortured in front of one another before they died.

West was the 137th person put to death in Tennessee since 1916, and the fifth inmate executed since August 2018.

West's legal team had pleaded to spare his life in the weeks before the execution.  They said his co-defendant Ronnie Martin had committed the murders while West stood by, hobbled by a history of childhood abuse and untreated mental illnesses.  Martin was 17 when the murders took place.  He remains in an East Tennessee prison and will be eligible for parole in 2030. Because he was a minor at the time of the crime, Martin was not eligible for the death penalty.

In a clemency application sent to Gov. Bill Lee, West's lawyers said he had reformed himself after receiving mental health treatment in prison.  They stressed his Christian faith and his work with other inmates behind bars.  Days before the execution, Lee said he would not intervene.  Within hours, West asked to die by electrocution instead of lethal injection, the state's default execution method.

He was the third inmate to make that choice since Tennessee resumed executions a year ago.  Each inmate who chose the electric chair had participated in lawsuits challenging Tennessee's lethal injection protocol.

Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions

As reported in this local article, one "Ohio lawmaker has an innovative solution to the state's problem securing execution drugs: use fentanyl seized by police instead." Here is more:

Rep. Scott Wiggam, R-Wooster, is working on legislation to allow Ohio prison officials to obtain fentanyl from drug busts. That option is far more humane than the electric chair or firing squad – options that states are considering as pharmaceutical companies cut off access to execution drugs.

"This is a much less violent way than the electric chair and the latest lethal injection (Dennis McGuire's 2014 death) that took 26 minutes," Wiggam told The Enquirer. "This is a much more humane way."

Fentanyl is a powerful opioid involved in 3,431 overdose deaths in 2017, according to Ohio Department of Health records. Ohio Highway Patrol seized more than 108 pounds of fentanyl in 2018, according to state records. Wiggam sent out an email requesting support for the proposal from fellow lawmakers, the Columbus Dispatch first reported.

Gov. Mike DeWine has stalled the state's executions while Ohio's prison system seeks an alternative way to execute Death Row inmates. A federal magistrate compared the effects of one of the drugs used, midazolam, to waterboarding....

The state's last execution was Robert Van Hook on July 18, 2018. Van Hook was convicted of killing and disemboweling neighbor David Self in February 1985. Ohio has scheduled 22 executions through 2022. The next execution is set for Nov. 13. Cleveland Jackson was convicted of killing 17-year-old Leneshia Williams and 3-year-old Jayla Grant in Lima in 2002.

Wiggam said he wanted to focus the discussion about Ohio's death penalty around ways to carry out executions currently required by state law rather than abandoning the process because it was too difficult to find drugs. "This is certainly a workaround," he said. "This is something that we know can bring deaths quickly to individuals."

Senate President Larry Obhof has said he's happy to explore other options. "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer earlier this year.

No other state has proposed using seized fentanyl to Wiggam's knowledge. Nebraska was the first state to use fentanyl as part of an execution in August 2018. The drug was obtained by a license pharmacy in the United States, according to a NPR report.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

"The Twenty-First Century Death Penalty and Paths Forward"

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

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States.  Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration.  While not abolished, in many states application of the death penalty is grinding or has ground to a halt.  If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age in prison while still waiting on death row with a variety of challenges still pending in the courts.

This reality presents an opportunity, or perhaps more accurately a responsibility, for renewed reflection by state legislators.  There at least three clearly discernable paths forward that states could follow.  One is to continue the present course with states maintaining the status quo which leads to some persons who are sentenced to death being executed often after decades on death row while most death-row inmates die from natural causes in prison.  Two, states can abandon the death penalty in favor of the maximum sentence being life without the possibility of parole.  Three, states can streamline the process for addressing legal challenges after a defendant has been convicted and sentenced to death to prevent decades of delay before executions are carried out.

In seeking to derive a better understanding of the current realities of actual application of death penalties and to explore the potential paths forward for the states, this article begins in Section I by addressing delayed application of the death penalty in death penalty states.  Section II next explores the transformation that has occurred in the interval between sentencing and execution from colonial America to the present.  In doing so, Section II addresses the reasons for the significant elongation of the interval between sentencing and execution that has occurred over the last four decades. Section III examines some of the deleterious consequences that arise from these delays for those sentenced to death, the families of victims, and the states themselves.  Section IV begins to delineate that paths that are available to the states in moving forward, considering some of the pitfalls and possibilities.

Reviewing recent state capital contractions as feds seek to restart executions

US Attorney General William Barr's announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) could give the impression that the death penalty is resurgent in the United States.  But this recent article from The Appeal Political Report provides a useful review and reminder that the death penalty continued to be contracting in the states.  The article is headlined "With New Law, Oregon Joins Wave of States Restricting or Halting the Death Penalty," and here are excerpts:

Movement is building against the death penalty at the state level, even as the Trump Administration calls for expanding its use and prepares to restart federal executions.

Oregon became the latest state to act against it last week when Governor Kate Brown signed Senate Bill 1013, which considerably narrows the range of capital offenses.

The reform does not abolish the death penalty, which is inscribed in the state Constitution and so can only be eliminated by referendum.  But the legislature circumvented that requirement by redefining “aggravated murder” (the only category eligible for the death penalty in Oregon) and removing most circumstances that currently warrant the “aggravated” moniker.

“The concept of this bill is to close the front door to the death penalty,” said Lynn Strand, the chairperson of Oregonians for Alternatives to the Death Penalty (OADP). Strand expects the law to be “quite effective” at stopping new death sentences and she called it “a giant step.”

“But it does not address what you do with the back door,” she added.  Indeed SB 1013 is not retroactive. It leaves 30 people on death row, largely for crimes that are not capital offenses under the new law, according to Jeffrey Ellis, an attorney with the Oregon Capital Resource Counsel....

The governor has the authority to commute existing death sentences. In explaining her support for SB 1013, Brown called the death penalty “immoral” and “dysfunctional.”  These are adjectives that apply to past sentences as much as to new ones. But she has yet to publicly signal whether she is considering commutations. Her office did not answer a request for comment....

Oregon does have a moratorium on executions. It was imposed by John Kitzhaber, Brown’s predecessor.  Brown has maintained it in place since taking office in 2015. The moratorium is important, but it is insufficient to end the death penalty’s moral and financial costs, and to remove its threat from a prosecutor’s arsenal of tools.  It could also be lifted by a future governor. “The moratorium stops executions,” Robert Dunham, executive director of the Death Penalty Information Center, told the Sacramanto Bee about California’s in July. “It doesn’t stop the machinery of death from moving forward.”

Oregon law specified 19 circumstances that label a murder “aggravated.” SB 1013 shrinks that list to the murder of a child under 14, a murder committed by someone who is already in prison, a terrorist act that kills more than two people, and the murder of law enforcement officers. In addition, jurors will no longer be asked to judge a person’s “future dangerousness” when weighing a death sentence.

These changes are leading prosecutors to drop their plan to seek the death penalty in a criminal case underway in Malheur County. Some prosecutors, such as District Attorney Patty Perlow of populous Lane County (home of Eugene), fought the bill....

Oregon is the fifth state to restrict, halt, or abolish capital punishment over the last 10 months.  In October, Washington State’s Supreme Court abolished it and also commuted the sentences of all eight people on death row.  Then, California Governor Gavin Newsom imposed a moratorium on executions in March; the New Hampshire legislature abolished the death penalty in May; and the New Mexico Supreme Court commuted the sentences of the only two people on death row there in June, a decade after the state abolished the death penalty for new crimes.

New Mexico’s decision leaves New Hampshire as the only state to abolish the death penalty but still have someone on death row.  Death penalty opponents are now actively planning their next moves in Colorado, Pennsylvania, and Wyoming.  At the county level, people have successfully run for prosecutor on a promise to not seek the death penalty, and capital punishment looms large in other local elections this fall.

Expressing concern about potential capital distraction from bipartisan criminal justice reform momentum

Laura Arnold has this notable new commentary at Law360 under the headline "Death Penalty Return May Undermine Criminal Justice Reform."  Here are excerpts:

Reasonable minds vociferously differ on, and will continue to debate, the morality of the death penalty. At this critical juncture and moment of opportunity for criminal justice, we must resist the urge to allow this debate to derail large-scale reform.

From a public policy, public safety and cost perspective, the federal death penalty pales in comparison to larger-scale reforms that we could enact today — areas where the White House could add to its bipartisan accomplishments.

There are roughly 171,000 convicted inmates in federal facilities and yet [AG Barr's restarting of executions] decision wastes precious political capital and national attention on a mere 62. Even if we end executions, those 62 will likely never set foot outside a prison for the rest of their lives. Their hearts will continue to beat, but their exile from the living world is immutable.

Meanwhile, there is much greater value in getting the system right for those among the 171,000 federal inmates and nearly 2 million in state and local facilities who have a chance of getting out. Those are the people helped by the First Step Act, and that is where we should continue to focus our efforts....

The death penalty raises a confluence of serious concerns that aren’t easily solved, ranging from constitutional questions to sheer public expense. No wonder that jurisdictions from coast to coast have stopped pursuing capital punishment. The number of death sentences declined by 50% between 2009 and 2015. In fact, only 16 counties out of 3,143 imposed five or more death sentences between 2010 and 2015.

Many advocates want to lower that number to zero. It’s a debate worth having, both at the federal level and in every state. Jurisdictions should, and will, make their own determinations, as they do on numerous issues of policy relevance.

But now is not the time to stoke this fight. We should focus all our bipartisan efforts on positively affecting the more than 2 million lives currently under incarceration nationwide, and on systemic improvements that will result in fewer people facing incarceration in the first place.

The Trump administration has demonstrated a passion for this mission, and a keen skill at building momentum amid an otherwise chaotic political atmosphere. Let’s not lose that momentum by derailing the conversation.

I very much like the message and spirit of this commentary, and long-time readers know I have long discussed in various settings the various problems I see from advocates and others giving so much attention to capital cases. (Some examples of my writings in this vein include A Capital Waste of Time? Examining the Supreme Court’s “Culture of Death,” 34 OHIO N.U. L. REV. 861 (2008) (available here) and Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. (2008) (available here).)

But, at the same time, I am not sure AG Barr's decision to try to kick-start the death penalty necessarily will or should have to negatively impact other bipartisan criminal justice reform efforts.  Though this may be wishful thinking, one might hope that the recent death penalty move by the Trump Administration may help mollify the "tough-and-tougher" crowd (likely Senators Cotton and Kennedy and certain pundits) who always pose challenges for further federal reforms.  

In months ahead, robust engagement with the federal death penalty will be taking place in federal courts, and I think it somewhat unpredictable whether and how this litigation will impact broader criminal justice reform politics.  But this commentary rightly flags an issue worth watching in the months and years ahead.

Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

As reported here six months ago, the Governor of Ohio has imposed something of a de facto moratorium on executions in the state not long after taking office because of concerns over the state's (historically troubled) lethal injection protocol.  But this new local article, headlined "DeWine now OK with ‘pouring fire in vein’ executions," reports on new developments suggesting new executions might go forward with an old execution protocol. Here are the details:

Despite saying in February that “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” Gov. Mike DeWine will consider using that same method in an upcoming execution, his spokesman said Tuesday.  The state’s lawyers have argued before a federal appeals court that Ohio’s current three-drug mixture can be used despite the lower court ruling likening it to waterboarding and pouring fire in the prisoner’s veins.

The governor earlier this year delayed four executions and ordered corrections officials to come up with a new death penalty protocol after a federal judge sitting in Dayton raised serious questions about the existing one.  Tuesday’s news comes after U.S. Magistrate Judge Michael Merz took the unusual step last week of ordering lawyers for the state to show DeWine a brief they filed in a death-penalty appeal. The brief appeared to be at odds with DeWine’s public position on Ohio’s controversial death-penalty protocol, Merz said in the order.

Merz is presiding in a lawsuit over whether Ohio’s death-penalty protocol violates constitutional protections against cruel and unusual punishment. He ruled in January that experts had convinced him that Ohio’s condemned were likely to experience severe pain using the protocol.  However, Merz did not stop the execution of Warren Keith Henness because, the judge ruled, Henness didn’t propose a viable alternative method of execution as required by a 2015 U.S. Supreme Court decision.

In response to Merz’s ruling, DeWine in January delayed Henness’s execution, saying the state would devise a new protocol.  Then in March, he delayed three more.  But now Henness’s new execution date is just six weeks away and the governor’s spokesman couldn’t say Monday how close the Ohio Department of Rehabilitation and Correction is to coming up with a new protocol.

A puzzled Judge Merz last week noted that in their appellate briefings the state’s lawyers voiced strong support for the death protocol that Merz — and presumably DeWine — found so problematic.  The state has “vigorously defended the existing protocol and criticized (Merz) for suggesting a stay of this litigation until the governor’s directions (to develop a new one) are carried out, as if it were (Merz’s) personal agenda rather than that of the governor,” Merz wrote, justifying his order that state lawyers show DeWine the appellate brief. “The court merely wishes to ensure that the governor has had an opportunity to see for himself whether he perceives this inconsistency.”...

But lawyers for Ohio said even if the condemned could feel pain after being injected with Midazolam, it still would not amount to constitutionally prohibited cruel and unusual punishment. “If hanging does not produce an unacceptable degree of pain even though it usually results in suffocation, then it follows that Midazolam does not cause ‘severe pain and needless suffering’ even if it is ‘certain or very likely to cause’ suffocation,” they wrote in their brief to the 6th U.S. Circuit Court of Appeals in Cincinnati.

They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the U.S. Supreme Court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious....

Press secretary Dan Tierney said there’s nothing unusual about DeWine delaying executions over concerns about Ohio’s death penalty at the same time the state’s lawyers are in court defending it. “Their job is to defend the laws as valid and constitutional until they’re proven otherwise,” Tierney said. Tierney and the state’s lawyers are holding out the possibility that Henness might be executed using Ohio’s existing three-drug protocol — an issue that Tierney said has “not been fully litigated.”

Asked whether DeWine might restart executions using the current protocol if the state’s lawyers prevail in that litigation, Tierney said in an email, “Understand that these are hypothetical scenarios, but if the court overturns the factual record in the lower court, or the factual record otherwise changes through the legal proceedings, the governor will certainly review that new evidence regarding the protocol and take it under consideration.”

Henness and his lawyers might find that litigation difficult.  The Supreme Court — particularly it’s conservative majority — has since 2008 shown itself to be increasingly skeptical of prisoners’ claims that various methods of lethal injection amount to cruel and unusual punishment.  They’ve voiced suspicions that what prisoners and anti-death-penalty advocates really are aiming for is a backdoor abolition of execution.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death

UPDATE: This new local article, headlined "Ohio can’t get drugs for a new execution method, DeWine admits," highlights how drug acquisition issues continue to cause problems for the Buckeye state's effort to get its machinery of death operational:

Ohio Gov. Mike DeWine said Wednesday that state prison officials are finding it impossible to find any company to supply drugs an execution alternative to one that essentially has been declared cruel and unusual. He said he would talk to Statehouse leaders about legislation allowing a different execution method.  Some Ohio death row inmates have been asking to be executed by firing squad, while two Tennessee inmates last year opted to be executed in the electric chair. Ohio’s “Old Sparky” has been in storage for years.

DeWine delayed four executions early this year after a federal judge in Dayton said Ohio’s current intravenous protocol came perilously close to violating constitutional protections against cruel and unusual punishment. One was rescheduled for Sept. 12, but DeWine on Wednesday said that was under review....

Ohio had been buying the drugs through its Department of Mental Health and Addiction Services and then driving them down to the death house at the Southern Ohio Correctional Facility without telling drug makers what the substances would be used for.  However, DeWine said the drug makers have told the state that if they suspect that any of their products would be used in executions, they would stop selling to the state altogether, potentially depriving tens of thousands of Ohioans of important medicine. “We are in a very difficult situation,” DeWine said.

Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death

Unsurprisingly, Attorney General William Barr announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) has prompted lost of reactions from the commentariat.  Here is just a sampling of some notable reactions and discussions I have seen: 

From The Atlantic, "Barr Doesn't See What's Wrong With the Death Penalty"

From Fox News, "Robert Blecker: AG Barr is right to resume death penalty for vicious killers"

From Fox News, "Hannah Cox: AG Barr is wrong to resume executions -- Death penalty goes against conservative principles"

From The Hill, "The death penalty is racially biased, fiscally irresponsible and very inaccurate"

From The Intercept, "With Federal Executions Looming, the Democrats' Death Penalty Legacy Is Coming Back to Haunt Us"

From New York magazine, "The Death Penalty Is Already a Farce. William Barr’s Plan Might Make It Torturous."

From Slate, "Trump’s Death Penalty Obsession Won’t Stem the Tide Against Executions"

From Spectator USA, "The death penalty is red tape threaded into a noose: On conservative grounds it is no longer defensible"

From Time, "Why the Justice Department's Plan to Use a Single Drug for Lethal Injections Is Controversial"

From The Washington Examiner, "Former death penalty proponent Biden flip-flops as federal cases advance"

 

Prior recent 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

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

As noted in this prior post, AG William Barr has engineered a new federal execution protocol and the scheduling of executions for five federal death-row inmates in December 2019 and January 2020. Perhaps the only thing this moves mean for certain is litigation over whether the new protocol is sound and whether these executions will go forward. Here are links and excerpts from a couple articles previewing the litigation to come:

From BuzzFeed News, "The Trump Administration Is Bringing Back Federal Executions. It Will Immediately End Up In Court."  Excerpt:

Megan McCracken, a lawyer involved in the case and an expert on lethal injections, told BuzzFeed News that the litigation focuses on whether a particular execution protocol is constitutional under the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also whether the process is otherwise lawful.  The lawsuit could examine, for instance, whether the Trump administration followed the proper procedures in adopting the new policy.  The administration did not go through the public rule-making process that agencies normally use in adopting regulations, which includes publishing details in advance and giving the public a chance to weigh in, before making its announcement Thursday.

“The devil is really in the details, and so all of the unknowns at this point are going to be the relevant issues for whether or not this protocol is constitutional, is lawful,” McCracken told BuzzFeed News.  “That is why the litigation that’s been on hold in federal court since 2011 ... will now need to proceed and give the court opportunity to review the procedure, the drugs, the execution teams, how they plan to administer it.”

A senior Justice Department official said that former attorney general Jeff Sessions directed the Federal Bureau of Prisons to explore options for resuming federal executions when he took office. The bureau recently concluded its review and submitted the proposal to Barr, who approved it, the official said.  The department’s press release said the new protocol was similar to single-drug procedures used in Georgia, Missouri, and Texas....

The prisoners involved in the pending litigation already had execution dates scheduled, which were put on hold.  The five men now scheduled for lethal injections aren’t parties to the case — defendants without execution dates hadn’t sought to join the case while it was delayed — but the Justice Department’s notice to the court Thursday means it expects the judge to review the new protocol.

From The Hill, "Opponents vow to challenge Justice decision on death penalty." Excerpt:

Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.... The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice....

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means. “Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement....

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted. But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court....

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.” “Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“

“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client. “The timing of this decision raises serious questions about the application of capital punishment under this administration."

As suggested by the title of this post, the really big question is whether this capital litigation will move swiftly or slowly. Obviously, the defendants now scheduled to be executed in less than six months would like this litigation to drag on for years. I assume the feds are eager and prepared to move this litigation along swiftly, but just how swiftly? Any ruling adverse to these defendants is sure to be appealed to a federal circuit court and to the Supreme Court. Is DOJ prepared to ask all these courts for expedited briefing schedules in order to try to preserve these scheduled execution dates?

Not mentioned in these pieces, but of great interest to me conceptually, is whether and how these defendants can constitutionally contest how AG Barr decided to put them in the front of the execution queue.  Notably, more than a dozen persons on federal death row were sentenced to death before Danny Lee was condemned in 2002, and more than a few were condemned more than half a decade before Lee.  Just why was he selected to be the first to be executed?  In addition, though less than half of federal death row is white (details here from DEPC), Danny Lee and two other of the condemned given the first execution dates are white. Did AG Barr think it might be politically useful to have more white defendants at the start of the execution queue, and if so wouldn't such thinking raise equal protection concerns?  (Because 8 of the 10 defendants sent to federal death row in the 1990s were black, including all three condemned way back in 1993, I think there is a circumstantial basis to believe that AG Barr may not have set executions dates chronologically because of concern that only black defendants would be scheduled to die first.  But is it constitutionally permissible for him to give race consideration this way?)

"Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"

The title of this post is the title of this quite notable and possibly quite consequential news release from the Department of Justice this morning.  Here is the main text:

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol—clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes. The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Attorney General Barr said. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Upon the Attorney General’s direction, Acting Director Hurwitz adopted the Addendum to the Federal Execution Protocol and, in accordance with 28 C.F.R. Part 26, scheduled executions for the following individuals:

• 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 Dec. 9, 2019.

• Lezmond Mitchell stabbed to death a 63-year-old grandmother and forced her nine-year-old granddaughter to sit beside her lifeless body for a 30 to 40-mile drive. Mitchell then slit the girl’s throat twice, crushed her head with 20-pound rocks, and severed and buried both victims’ heads and hands. On May 8, 2003, a jury in the U.S. District Court for the District of Arizona found Mitchell guilty of numerous offenses, including first degree murder, felony murder, and carjacking resulting in murder, and he was sentenced to death. Mitchell’s execution is scheduled to occur on Dec. 11, 2019.

• 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 Nov. 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 Dec. 13, 2019.

• Alfred Bourgeois physically and emotionally tortured, sexually molested, and then beat to death his two-and-a-half-year-old daughter. On March 16, 2004, a jury in the U.S. District Court for the Southern District of Texas found Bourgeois guilty of multiple offenses, including murder, and he was sentenced to death. Bourgeois’ execution is scheduled to occur on Jan. 13, 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 Oct. 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 Jan. 15, 2020.

Each of these inmates has exhausted their appellate and post-conviction remedies, and currently 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.

As with so much Trump Administration activity, this news and activity is sure to generate litigation and lots of commentary. I expect I will myself have much to say in coming posts.

"Capital Punishment, 2017: Selected Findings"

The title of this post is the title of this just released report from the Bureau of Justice Statistics.  Though BJS is often the provided of the best available, in the capital punishment arena the Death Penalty Information Center tends to have more up-to-date and more detailed data on capital punishment.  In any event, this new BJS report includes "statistics on the number of prisoners executed each year from 1977 through 2017, the number and race of prisoners under sentence of death at year-end 2017 by state, and the average elapsed time from sentence to execution by year from 1977 through 2017."  And the short document sets out on its initial page these "highlights":

• At year-end 2017, a total of 32 states and the Federal Bureau of Prisons (BOP) held 2,703 prisoners under sentence of death, which was 94 (3%) less than at year-end 2016.

• In 2017, the number of prisoners held under sentence of death declined for the 17th consecutive year.

• Eighteen states held fewer prisoners under sentence of death at year-end 2017 than at year-end 2016, 3 states and the BOP held more prisoners, and 11 states held the same number.

• Three states accounted for 59% of the national decline in prisoners under sentence of death in 2017: Florida (down 33 prisoners), Delaware (down 12), and Texas (down 10).

• Thirty-four states and the federal government authorized the death penalty at year-end 2017; two of these states (New York and Wyoming) had no prisoners under sentence of death during the year.

• Prisoners executed in 2017 had been under sentence of death for an average of 20 years and 3 months, which was an increase of 3 years and 3 months from 2016 and an increase of 7 years and 6 months from 2007.

• Of the 23 prisoners executed in 2017, a total of 16 (more than two-thirds) had been sentenced in 1999.

Litigation over capital trials during Gov moratorium heads to California Supreme Court

In prior posts linked below, I covered on this blog the decision by California Gov Gavin Newsom to declare a moratorium on executions in his state and the echoes of that decision.  This new Los Angeles Times article reports on the latest echo under the headline "Death penalty trials have continued despite Newsom’s moratorium. The California Supreme Court could stop them."  Here are excerpts:

The attorneys were about two weeks into choosing a jury in an upcoming triple-murder trial when they had to toss out the work they’d done and send the potential jurors home.

The California Supreme Court essentially froze the death penalty trial of Jade Douglas Harris, which was set to start this month, as it decides whether it will consider an argument by his defense attorney that he can’t get a fair trial in light of Gov. Gavin Newsom’s moratorium on executions in the state.

The court has until Aug. 30 to decide whether to take up a matter that could result in essentially blocking death penalty trials in California while the moratorium is in effect during Newsom’s term.

Public defenders representing Harris, who is accused in a shooting rampage that left three people dead and two others wounded, argue that jurors must believe that when they hand down a death sentence, it will be carried out....

The attorneys say a fair decision is impossible given that Newsom granted a reprieve to the more than 700 prisoners on death row and had the state’s execution chamber dismantled — with much fanfare in front of cameras.

“It’s just really impossible for a jury to go into a jury room and say, ‘We’re going to ignore that,’” said Robert Sanger, a defense attorney who first made this argument on behalf of a defendant in an unrelated capital case in Los Angeles County.... “The jury making that order has to really believe it, because if they don’t, they could be cavalier about it and just say: ‘Well, let’s send a message.… We know [the death sentence] is never going to happen, but let’s do it anyway,’” Sanger said.

Laurie Levenson, a professor at Loyola Law School, said there’s a real risk to the accused if that is the mindset of jurors. “The question is likely to be: Is there any kind of instruction or precautionary steps that a trial judge can take to prevent that from occurring?” she said. It’s hard to predict what the court will decide, Levenson said, but its stay in the Harris case signals that the state’s highest justices are taking his petition seriously. “It’s not a frivolous issue,” she said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he was disappointed the court was seriously considering what he called a “meritless argument.”

“Newsom’s moratorium only lasts for the duration of his term as governor. Nobody sentenced today would be executed within the next seven years anyway,” said Scheidegger, whose organization backed a measure to speed up executions in California. “And everybody pretty much knows that.”

Prosecutors in Johnson’s case said in court papers that any of his concerns can be handled through appropriate jury instructions and during voir dire, when jurors are questioned before the trial to determine their fitness. They argued that concerns about fairness can also be assessed on appeal....

A Los Angeles County district attorney’s office spokeswoman said in a statement that the law hasn’t changed, and until it does, prosecutors will “continue to fairly evaluate all special circumstance cases and seek death against the worst of the worst offenders, including child murderers and serial killers.”...

The American Civil Liberties Union recently published a report that said all of the 22 people sentenced to death in L.A. County since Dist. Atty. Jackie Lacey took office in December 2012 are people of color. This week, a group of more than 75 law professors and scholars called on Lacey to stop seeking death penalty sentences.

Prior related posts:

• New California Gov to order moratorium on executions in his state 
• California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions
• California DAs assail Gov Newsom's execution moratorium 
• Noting how California's prosecutors keep pursuing death sentences despite execution moratorium, and what more Gov Newsom has in mind

Philly DA argues, based on study of local capital cases, that "death penalty, as it has been applied, violates the Pennsylvania Constitution"

As reported in this local article, headlined "DA Krasner wants Pa. Supreme Court to strike down state’s death penalty and declare it unconstitutional," a notable local prosecutor has filed a notable state court brief that surely could have national consequences.  Here are the basics:

In a response to a death penalty case that could have far-reaching ramifications, the Philadelphia District Attorney’s Office is asking the Pennsylvania Supreme Court to strike down the state’s death penalty and declare it unconstitutional.  “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,” District Attorney Larry Krasner’s office wrote in a motion filed with the court Monday night....

The DA’s Office was responding to a petition filed by federal public defenders representing Philadelphia death-row inmate Jermont Cox, convicted of three separate drug-related murders in 1992 and ordered to die for one of them.  The defense attorneys, who also represent a Northumberland County inmate, Kevin Marinelli, sentenced to death for a 1994 killing, have asked the high court to end capital punishment, arguing that the death penalty violates the state Constitution’s ban on cruel punishment.

Krasner’s office agrees with that assessment.  The office’s position does not come as a surprise — Krasner had campaigned against the death penalty while running for district attorney in 2017, saying he would “never seek the death penalty” — but Monday night’s motion in the Cox case is the first time Krasner has articulated it to the state’s highest court....

The justices’ eventual decision on Cox and Marinelli could affect not just future death-penalty cases, but also the approximately 130 other inmates awaiting execution, potentially forcing the courts to resentence them.  After a June 2018 bipartisan legislative Joint State Government Commission report found troubling deficiencies in the state’s death-penalty system, Philadelphia-based federal defenders in August filed separate petitions for Cox and Marinelli, asking the state high court to find the death penalty unconstitutional.

The defense attorneys asked the high court to invoke its King’s Bench authority, which gives the court the power to consider any case without waiting for lower courts’ rulings when it sees the need to address an issue of immediate public importance.  The court consolidated the two cases in December.  In its February joint petition for Cox and Marinelli, the federal defenders asked the high court to “strike down the Commonwealth’s capital punishment system as a prohibited cruel punishment” and heavily relied on the joint commission’s report in finding problems with the death penalty....

The DA’s Office response to the defense petition was initially expected in March.  City prosecutors three times requested a deadline extension.  The high court then set a July 15 deadline. The court has set a Sept. 11 hearing date for oral arguments on the petition from Cox and Marinelli....  

Pennsylvania’s death penalty has been used three times since it was reinstated by the state in 1978.  The last person executed was Gary Heidnik of Philadelphia in 1999.

The full brief from DA Larry Krasner's office is available at this link, and it is a must-read in part because it makes much of the office's own study of Philadelphia capital cases. Here are a few paragraphs from the the brief's introduction:

To assess whether Pennsylvania’s capital sentencing regime ensures the heightened reliability in capital cases required by our Constitution, there is no better place to start than Philadelphia — the jurisdiction that has sought and secured more death sentences than any other county in the state.  In order to formulate its position in this case, the Philadelphia District Attorney’s Office (DAO) studied the 155 cases where a Philadelphia defendant received a death sentence between 1978 and December 31, 2017.

As will be detailed below, the DAO study revealed troubling information regarding the validity of the trials and the quality of representation received by capitally charged Philadelphia defendants — particularly those indigent defendants who were represented by under-compensated, inadequately-supported court-appointed trial counsel (as distinguished from attorneys with the Defender Association of Philadelphia).  Our study also revealed equally troubling data regarding the race of the Philadelphia defendants currently on death row; nearly all of them are black.  Most of these individuals were also represented by court-appointed counsel, often by one of the very attorneys whom a reviewing court has deemed ineffective in at least one other capital case....

Where nearly three out of every four death sentences have been overturned— after years of litigation at significant taxpayer expense—there can be no confidence that capital punishment has been carefully reserved for the most culpable defendants, as our Constitution requires. Where a majority of death sentenced defendants have been represented by poorly compensated, poorly supported court-appointed attorneys, there is a significant likelihood that capital punishment has not been reserved for the “worst of the worst.” Rather, what our study shows is that, as applied, Pennsylvania’s capital punishment regime may very well reserve death sentences for those who receive the “worst” (i.e., the most poorly funded and inadequately supported) representation....

As this Court observed in Zettlemoyer, our 1978 statute attempted to establish a reliable, non-arbitrary system of capital punishment. Decades of data from Philadelphia demonstrates that, in its application, the system has operated in such a way that it cannot survive our Constitution’s ban on cruel punishment. Accordingly, the DAO respectfully requests this Court to exercise its King’s Bench or extraordinary jurisdiction and hold that the death penalty, as it has been applied, violates the Pennsylvania Constitution.

Some additional good discussion of this brief and its context can be found in discussions at The Appeal and Reason.

Capital punishment news and notes from the new Death Penalty Information Center website

The extraordinarily valuable Death Penalty Information Center last month updated the look of its website, which seems worth mentioning because this announcement includes information about new materials and additions at the site:

The Death Penalty Information Center has modernized and expanded its award-winning website.  On June 14, 2019, DPIC launched its redesigned website, culminating a two-year project that involved the transfer and reorganization of information on the Center’s more than 7,000 webpages.  Among the most notable additions of the new website are 20 interactive Tableau graphics, including States With and Without the Death Penalty, Prisoners on Death Row, and a number of graphics on executions, exonerations, and grants of clemency.  The graphics will allow users to filter information in a variety of new ways, including narrowing by year or range of years, geography, race, sex, and, for some graphics, race of victim. 

Thankfully, the site still includes on his homepage its coverage of news, developments and resources, and here are links to a few recent items therefrom:

• Spring 2019 ​“Death Row USA” Documents Further Shrinking of U.S. Death-Row Population

• Florida Capital Sentencing Juries Return Four Life Verdicts in Two Weeks

• Books: Lethal State — A History of the Death Penalty in North Carolina

• Texas Sets Execution Date For Jewish Prisoner Who Alleges Judge Was Racist and Anti-Semitic

ABA releases "The State of Criminal Justice 2019" (with capital punishment chapter online)

The American Bar Association's Criminal Justice Section produces a terrific annual review of criminal justice developments, and the latest version is now available here under the title "The State of Criminal Justice 2019."  Here is how the text is described:

This publication examines and reports on the major issues, trends and significant changes in the criminal justice system. The 2019 volume contains chapters focusing on specific aspects of the criminal justice field, with summaries of all of the adopted official ABA policies passed in 2018-2019 that address criminal justice issues.

Authors from across the criminal justice field provide essays on topics ranging from white collar crime to international law to juvenile justice. The State of Criminal Justice is an annual publication that examines and reports on the major issues, trends and significant changes in the criminal justice system during a given year. As one of the cornerstones of the Criminal Justice Section's work, this publication serves as an invaluable resource for policy-makers, academics, and students of the criminal justice system alike.

In addition, the Capital Punishment chapter from this collection is available at this link, and it starts with this interesting data on capital sentences imposed in 2018:

The number of death penalties imposed in the United States in 2018 was an estimated 42.  The number of death sentences imposed between 2015 and 2018 was half the number imposed in the preceding four years. 

To put this in context, death sentences, after peaking at 315 in 1996, declined over time to 114 in 2010, and then dropped considerably in 2011 to 85, and were 82 in 2012 and 83 in 2013, before a large drop to 73 in 2014, and a bigger drop to 49 in 2015, and then fell to 31 in 2016, before rising to 2017’s 39 and 2018’s 42.

For the first year since the death penalty resumed after Furman v. Georgia, there was not in 2018 a single county in the entire United States in which more than two death sentences were imposed.  Some states that used to be among the annual leaders in imposing death sentences have now gone years without any new death sentences.

One notable state in this regard, Georgia, as of March 2019 has gone five full years without a new death penalty.  In explaining why, Bill Rankin of the Atlanta Journal Constitution pointed to the facts that life without parole (“LWOP”) can now be imposed in Georgia without the prosecutor’s having sought capital punishment and is now recognized by jurors to really mean a life sentence with no chance of parole; that the quality of trial-level defense lawyers’ performance has greatly increased; and that it is now far more difficult to get juries to vote for death sentences -- even when the crimes are especially aggravated.

State judge finds Kentucky still failing to implement properly death penalty exemption for defendants with intellectually disability

A helpful reader sent me this news story from Kentucky headlined "Kentucky judge declares state's death penalty protocol unconstitutional."  Here are the basics:

A Kentucky judge has struck down the state's death penalty protocol as unconstitutional because it does not explicitly prohibit the execution of prisoners with intellectual disabilities.

Ruling on a motion brought by a dozen inmates on death row, Franklin Circuit Judge Phillip Shepherd ruled Tuesday that the regulation is invalid because it doesn't automatically suspend an execution when the state corrections department’s internal review shows a condemned person has an intellectual disability.

Granting a motion filed by the Department of Public Advocacy, Shepherd said the state's rules are flawed because they would allow a prisoner with intellectual disabilities to be executed if he or she declines further appeals.  The U.S. Supreme Court “categorically prohibits the execution of intellectually disabled persons,” Shepherd noted.

Assistant Public Advocate David Barron said all executions in Kentucky already had been stayed because of questions about the state's means of lethal injection, as well as other issues. Tuesday's ruling continues that stay, he said.

Barron called the opinion "a sound ruling that recognizes what we have been arguing for years."  He said the corrections department has “doggedly persisted” in refusing to recognize the U.S. Supreme Court’s ruling 17 years ago by taking “reasonable steps to ensure that an intellectually disabled person is not executed.”

The Kentucky attorney general’s office, which defended the regulations, is reviewing the ruling, spokesman Kenneth Mansfield said.

Based on statutory proportionality review, split New Mexico Supreme Court dismiss death sentences for two murderers left on state's death row a decade after legislative abolition

As well reported in this Courthouse News Service piece, headlined "New Mexico Supreme Court Vacates Two Remaining Death Sentences," the final anti-death penalty shoe finally dropped in New Mexico a full decade after the state's legislature repealed its death penalty.  Here ere are the basics:

A divided New Mexico Supreme Court Friday set aside the death sentences of the last two men awaiting execution in the state, ruling that the penalties were disproportionate in comparison to sentences in similar murder cases.  The death penalty was abolished in New Mexico in 2009, but the death sentences of Timothy Allen and Robert Fry remained in place, because they were convicted and sentenced years before the change.

Allen and Fry were sentenced under a New Mexico law that requires the state’s highest court to review “comparative proportionality” in capital punishment cases.  State lawmakers adopted the 1976 law to ensure that the death penalty was not being imposed in ways that would violate inmates’ constitutional protections against cruel and unusual punishment.

Writing for the majority Friday, New Mexico Supreme Court Justice Barbara J. Vigil said justices found “no meaningful distinction” between the circumstances of Allen and Fry’s cases and those of similar murder cases.  “The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases,” Vigil said in the 147-page opinion.

Retired Justices Edward L. Chávez and Charles W. Daniels joined the majority decision, which did not address concerns over potential violations to Allen and Fry’s constitutional rights. Daniels wrote in a concurring opinion that “equally culpable” defendants in murder cases escaped the death penalty, adding that New Mexico has not imposed the death penalty in a “proportionate” way.  “A killer’s crimes reflect who he is,” Daniels said.  “What we do to the killer reflects who we are.”

Chief Justice Judith K. Nakamura wrote in the dissenting opinion that the majority misinterpreted the law.  “The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico,” said Nakamura, who was joined in dissent by retired Justice Petra Jimenez Maes.  “They perceive in the language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico.”

The full 147-page ruling is available at this link, and here is how the Court's opinion gets started:

In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes.  Since 1979, the New Mexico Legislature has directed this Court to ensure that “the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.  Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico.  Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.

In this consolidated appeal of the district court’s denial of Petitioners’ motions to dismiss their death sentences, we hold that Petitioners’ death sentences are disproportionate and violate Section 31-20A-4(C)(4).  Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basisfor distinguishing Fry and Allen from the many similar casesin which the death penalty was not imposed.  Because Petitioners’ death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.

Though taking longer in New Mexico than elsewhere, this ruling continues the well-established trend of state courts finding one way or another to give retroactive effect to the statutory repeal of the death penalty even when a legislature has sought to explicitly provide for the carrying out of prior lawful death sentence.

"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"

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

Most discussion on capital punishment focus on the merits of the death penalty generally.  While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial.  As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.

This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts.  Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle.  Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims.  On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant.  On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay.  Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.

Addressing this concern, this Article canvasses potential solutions.  Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here. 

"Madison and the Mentally Ill: The Death Penalty for the Weak, Not the Worst"

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

Time and again, we are told that the death penalty is for the worst of the worst offenders, so how is it that the severely mentally ill end up in the snare of the capital justice system in the first place?  This essay — a transcribed (and slightly edited) version of a keynote speech given at Regent University’s 2018 law review symposium on mental health and the law — endeavors to answer that question.

The journey starts with deinstitutionalization of the severely mentally ill in the 1970s, and reinstitutionalization through the criminal justice system thereafter.  It then turns to the capital justice process, which not only fails to screen out those with severe mental illness, but is filled with hazards that make this cohort of offenders even more likely to be convicted and sentenced to death.  Next it turns to death row, and the conditions of solitary confinement in which the sick get sicker, and languish that way until it is time to die. Finally, the discussion turns to the doctrinal failsafe of competency to be executed, and explains why so many with severe mental illness fall through the cracks. 

The reality of the death penalty is that it is not for the worst of the worst.  It is for the weak among the worst — the most vulnerable offenders in a variety of ways, and executing those with severe mental illness is just a testament to the truth of that claim.

Georgia completes execution making a total of 1,500 in modern death penalty era

Because Texas has executed so many more murderers than any other state in the modern era, it really should have the "honor" of carrying out any landmark execution.  But, as this CNN article details, Georgia was the state to conduct a landmark execution tonight.  The article is headlined "Georgia inmate is the 1,500th person executed in the US since the death penalty was reinstated," and here are excerpts:

A Georgia inmate convicted in the killing of man who gave him a ride in 1997 died by lethal injection Thursday, the state's Department of Corrections said.  Marion Wilson Jr. is the 1,500th person to be executed in the United States since the return of the death penalty in 1976, according to the Death Penalty Information Center.

His execution was carried at 9:52 p.m. ET at the Georgia Diagnostic and Classification Prison in Jackson, Georgia after the US Supreme Court denied a stay of execution.

Wilson was sentenced to death in 1997 for the murder of Donovan Corey Parks in southeast Atlanta.  Parks was found dead on a residential street after he gave Wilson and another man a ride from a Walmart store.  Parks had gone to the store to buy cat food and accepted to give them a ride when they approached him in the parking lot, authorities said.

"Abolishing the death penalty requires morality"

The title of this post is the headline of this new commentary authored by Stephen Cooper, which is a response to a recent commentary by Austin Sarat (blogged here).  Here are excerpts:

In “How to Convince Americans to Abolish the Death Penalty,” Amherst College Professor Austin Sarat asserts “important lessons about how abolitionists can be successful around the country” can be learned from New Hampshire – which just last month became the twenty-first state to abolish capital punishment — including: “The moral argument doesn’t work.”...

Sarat’s regretful and regressive capitulation to the fallacious dogma of retribution is, therefore, in my opinion, as disturbing as it is disappointing.

In his book “The Ethics of Punishment,” Sir Walter Moberly sagely observed about retribution that “[t]he executioner pays the murderer the compliment of imitation,” and, more keenly: “Much demand for retribution certainly has a shady origin.  It springs from the crude animal impulse of the individual or group to retaliate, when hurt, by hurting the hurter. In itself such resentment is neither wise nor good and, in its extreme forms, it is generally condemned as vindictive.”...

The constitutional prohibition against cruel and unusual punishment bears no asterisk for crimes committed by “society’s most despised.”  Abolitionists should continue to proudly and affirmatively demand the Eighth Amendment’s guarantee of dignity for everyone, while continuing to make reasoned morality-and-dignity-based arguments to end the death penalty — when it makes sense to — notwithstanding whether or not this strategy was employed during the recent abolitionist success in New Hampshire.

Demanding dignity for society’s most despised is the lifeblood of our weakened, chronically underperforming Eighth Amendment.  And it is still at the heart of what it means to be an abolitionist.

Prior related posts:

• With legislative override of Gov veto, New Hampshire formally repeals its death penalty 
• "How to Convince Americans to Abolish the Death Penalty"

Noting that nearly all Democratic candidates are against the death penalty

This lengthy new San Francisco Chronicle article, headlined "Nearly all Democratic candidates oppose death penalty as public opinion shifts," reports on the new political reality surrounding death penalty view of leading candidates.  Here are excerpts:

Not so long ago, opposing the death penalty was pretty much a death knell for a presidential candidate.  Michael Dukakis, for one, sank his remaining hopes in 1988 when he told a debate questioner he would oppose execution even for someone who had raped and murdered his wife.

Now, in what appears to be another sign of a public turnabout on the issue, nearly all of the Democratic presidential hopefuls — with the notable exception of former Vice President Joe Biden — say they are against capital punishment....

If candidates “thought they were going to hurt themselves by coming out against the death penalty, I really think very few would do it,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles who specializes in election law and governance.  “I think the consensus (among candidates) is, this is where public opinion is or is about to be.”

Opinion polls indicate a decline in nationwide support for the death penalty, from 80% in a 1994 Gallup survey to 56% in October 2018.  A Quinnipiac University poll in March 2018 found that respondents favored life without parole over the death penalty for murder by 51% to 37%. And the polls say Democrats, who will vote in next year’s primaries, are more than three times as likely as Republicans to oppose the death penalty.

The president ... has direct authority over only the federal death penalty, which accounts for a fraction of the more than 2,700 death sentences now pending in the United States, including 735 in California.

Condemned federal prisoners include a few notorious cases — like Tsarnaev and Dylann Roof, the white supremacist who slaughtered nine African Americans at a South Carolina church in 2015 — but most of the 62 were convicted of murders that came under federal jurisdiction because they took place in federal prisons or other U.S. property or were connected to federal drug crimes.  The last federal execution took place in 2003.

Somewhat relatedly, Nicholas Kristof has this lengthy essay in the New York Times proving arguments for death penalty opposition unde the headline "When We Kill: Everything you think you know about the death penalty is wrong."

"The Myth of Bipartisan Death Penalty Abolitionism"

The title of this post is the headline of this notable recent commentary by Charles Fain Lehman at the Washington Free Beacon. I recommend the whole piece, which is a response in part to a recent Atlantic commentary noted here.  Here is how Lehman's piece starts and ends (with links from the original):

Did you know that Republicans are "quietly turning against the death penalty"?  So sayeth the Atlantic, in a lengthy story published Sunday in the wake of New Hampshire's abolition of the death penalty.  Sunday's article is just the latest in "conservatives who oppose the death penalty" coverage.  Google some combination of "death penalty," "conservative," and "oppose" and you will find similar stories from outlets like the Guardian, Wall Street Journal, and Washington Post.

The Atlantic piece neatly summarized the tenor of such stories: "death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S."

The basis of this argument is that a handful of Republican state legislators have authored or signed on to legislative proposals to end the death penalty.  But the implication is that conservatives are slowly but steadily getting in line behind the liberal consensus against the death penalty.  That's total nonsense.  Let's look at the data.

The General Social Survey, a major survey of public opinion administered by the National Opinion Research Center at the University of Chicago, has routinely asked respondents about their views on the death penalty since 1974; it also tracks respondents' political views.  The results are pretty clear: Roughly three in four conservatives support the death penalty, and have done so at at least that rate since the 1970s....

To be sure, there are self-identified conservatives who oppose the death penalty, in much the same way that there are self-identified conservatives who call themselves pro-choice or reject the right to keep and bear arms.  But the survey data show that abolition has been and remains a clear minority view, among conservatives and indeed among Americans generally.

Why, then, does the mainstream media keep pushing the narrative that there is some emerging conservative consensus against the death penalty?  Why do they keep regurgitating the talking points of the same few advocates?  (The Atlantic article conspicuously lacks a quote from any expert who represents the majority of Americans who support the death penalty.)

On this we can only speculate.  But one thing is clear: When it comes to the death penalty, most of the media is on one side, and most conservatives — indeed the majority of Americans — are on the other.

Interesting new data on declining capital habeas petitions in federal court

The folks at TRAC recently produced this interesting little data report under the heading "Death Penalty Prisoner Petitions Fall Sharply."  Here is part of the text:

The latest available data from the federal courts show that during April 2019 the government reported only 5 new prisoner petitions challenging their death penalty sentence. According to the case-by-case court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, there were just 62 death penalty challenges for the first seven months of FY 2019.  They have fallen over fifty percent (51.6%) over the last two years. Petitions are on pace to be the lowest number filed in over a decade.

The comparisons of the number of civil filings for death penalty-related suits are based on case- by-case federal court records which were compiled and analyzed by TRAC...  Since FY 2008, death penalty petitions reached a peak during FY 2009 when they totaled 245. The previous low was five years ago in FY 2014 when they fell to 162. If the current pace of filings continues during the remaining months of FY 2019, filings are projected to be only slight above one hundred this year.

Absent some other data or distinctive explanation, this seems like a pipeline story: in the 198-s and 1990s, there were lots of state death sentences imposed, resulting in lots of capital habeas challenges reaching the federal courts decades later. In years, the number of state death sentences have declined (see DPIC data here), meaning that the number of subsequent federal habeas challenges have declined.

SCOTUS grants cert in new capital case from Arizona concerning death sentence review procedures

The Supreme Court's new order list this morning includes new cert grants in five cases, one of which will interest sentencing fans.  Specifically, McKinney v. Arizona, No. 18-1109, involves questions of how a death sentence is to be reviewed.  SCOTUSblog coverage of the case has all the cert stage briefs linked (including a number of amici briefs), and here is the Questions Presented from the cert petition:

1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

And here is how Arizona's brief in opposition describes the issues in the case:

1. Whether the Arizona Supreme Court erred in concluding that, because Petitioner’s convictions and sentences on two counts of first-degree murder became final several years before this Court decided Ring v. Arizona, 536 U.S. 584 (2002), that Ring did not apply to Petitioner.

2. Whether the Arizona Supreme Court erred in conducting an independent review of Petitioner’s death sentences.

Any Supreme Court decision about how Ring claims are to be sorted through on appeal should impact not only death sentence in Arizona, but also in Florida and perhaps a few other states. So McKinney could end up a pretty big deal.

Has death penalty reform "quietly broken through as a bipartisan issue"?

About four years ago, I asked in this 2015 post "Is there really a "growing conservative movement" that will create "bipartisan coalition opposing" the death penalty?".  That post was prompted by a commentary noting various anti-death penalty movements in various red states.  This new Atlantic piece, headlined "GOP Lawmakers Are Quietly Turning Against the Death Penalty," is written in this same spirit and inspired by the repeal of the death penalty in New Hampshire.  Here are excerpts:

Though law-and-order conservatives have long championed the death penalty, New Hampshire is one of a growing number of states where Republicans ... are joining Democrats to push for a ban.  Last week, New Hampshire became the 21st state to outlaw capital punishment, one of 11 states this year — including GOP strongholds such as Kansas, Wyoming, Kentucky, and Missouri — where Republican lawmakers have sponsored bills to end the practice.  The movement is the result of several political factors, including Republican and Democratic concern over the country’s criminal-justice system.  But it’s also been motivated by lawmakers’ personal experiences....  Death-penalty reform has quietly broken through as a bipartisan issue — one that could portend a shaky future for capital punishment in the U.S.

Lawmakers in New Hampshire had tried and failed to outlaw the death penalty for two decades.  In 2018, they got close: The GOP-controlled state legislature passed a repeal bill, though it didn’t have enough votes to override Republican Governor Chris Sununu’s quick veto.  This year was different.  A repeal bill, co-sponsored by Welch, passed both chambers with just enough bipartisan support to narrowly best the governor.

Of course, many Republican state lawmakers — not to mention the president — still support the death penalty.  So does their base: A 2018 Pew Research Center poll found that three-quarters of Republican voters favor capital punishment, compared with just 35 percent of Democrats.  And the overwhelming majority of executions take place in red states: Of the 25 prisoners put to death in the United States last year, 13 were in Texas alone.  Democrats still continue to lead the charge to abolish the death penalty throughout the country, and starting in 2016, the national party included it in its official platform.  Nevertheless, like other states, New Hampshire wouldn’t have been successful without the support of dozens of Republicans in the legislature....

It wasn’t always this way.  Politicians from both parties have historically used the death penalty as a wedge issue to show that they were “tough on crime,” says Robert Dunham, the executive director of the nonpartisan Death Penalty Information Center.  A rise in the number of executions in the 1990s coincided with a push toward mass incarceration. While calls for reform escalated in the 2000s, as late as 2008, the then–presidential candidate Barack Obama voiced his disagreement with a Supreme Court ruling limiting the use of the death penalty in Louisiana.

One significant reason the tide has started to shift is the rise in conservative support for criminal-justice reform in the past few years.  Conservative groups such as Right on Crime and the Charles Koch Institute have advocated for reforms, including the First Step Act, a bipartisan bill President Donald Trump signed into law in late 2018 that changed some sentencing laws and targeted recidivism....

“As conservatives, we know the government’s flawed. We hate the government,” says Hannah Cox, the national manager of the advocacy group Conservatives Concerned About the Death Penalty. “Why would we give it power over life and death?”...

Overall, the opposition to the death penalty among Republicans represents a genuine, if slim, fault line in the party, one that could grow in parallel with concerns about the criminal-justice system as a whole. State lawmakers seem like the ones to watch: From 2000 to 2016, the number of GOP legislators sponsoring death-penalty-repeal bills increased by more than a factor of 10, according to Cox’s group. Repeal efforts have made it strikingly far in some conservative states. In February, Wyoming’s repeal bill passed the House and came within seven votes of passing the Senate. In Utah, a 2016 repeal effort passed the Senate but was just eight votes shy in the House. And in 2015, Nebraska lawmakers successfully overrode the governor’s veto to ban the death penalty, although it was later reinstated....

But for conservatives in New Hampshire who were key in getting death-penalty repeal past his veto, their concerns about capital punishment were too hard to ignore.  Bob Giuda, a Republican state senator, told me he also used to support the death penalty, but then slowly changed his mind.  “What do we accomplish by executing people?” he said.  “What statement do we make?” Giuda’s wife lives in a vegetative state, and he told me that he aspires to view all lives as equal, whether it’s his wife’s or Addison’s. “We don’t get to assign that value,” he said.

That type of deeply intimate answer may be why Republicans and Democrats in New Hampshire, and in other states, are joining together to scrap death-penalty laws, even as they remain deeply polarized on a whole set of other issues.  “I never hear, ‘Well, my caucus thinks’ or, ‘My party says,’” Hruska said. “It’s always a personal answer.”

"Recording the Pain of Others: Lethal Injection's Visibility Problem"

The title of this post is the title of this new piece authored by Christen Hammock and now available via SSRN, Here is its abstract:

In July 2011, Georgia executed Andrew DeYoung for murdering his parents and sister.  Pursuant to a motion to preserve evidence brought by counsel for Gregory Walker, another man on Georgia’s Death Row, DeYoung’s execution produced the only existing video of a lethal injection in the United States, which remains under seal in a Georgia courthouse.  This effort to record an execution reverses the historical trend of making executions less visible by bringing them inside prison walls and limiting eyewitnesses.  Unlike similar cases, the successful motion to preserve DeYoung’s execution and autopsy on video did not litigate the public’s right to see executions, but instead argued that visual evidence of a botched execution was necessary to support another condemned man’s Eighth Amendment claim.

This project evaluates this strategy’s assumption that video representation is less mediated and thus more effective and accurate as evidence than traditional eyewitness and expert testimony.  This evaluation proceeds by examining the rhetorical strategies used in death penalty abolition litigation and judicial opinions that have, in turn, upheld and struck down methods of capital punishment.  Part I examines lethal injection’s “invisibility problem” and argues that this problem stems from secrecy surrounding state execution protocols and the overwhelming metaphor of healing that lethal injection’s “weapons” project.  Part II explores a potential solution to this problem — creating visual records of lethal injections — using the litigation surrounding DeYoung’s execution as an example.

"How to Convince Americans to Abolish the Death Penalty"

The title of this post is the headline of this New Republic commentary authored by Austin Sarat. Here are excerpts:

When New Hampshire abolished the death penalty on Thursday, the reaction to the news — at least nationally — was rather muted.  Here was a New England state, after all, whose machinery of death had rusted long ago.  “This debate has been largely symbolic, because New Hampshire has neither an active death penalty system nor any executions on the horizon,” The Washington Post reported.  “The state has only one person on death row … and last carried out an execution in 1939.”...

But there is greater significance here than it seems.  For starters, New Hampshire joins a growing trend.  Now, since 2007, seven states have abolished capital punishment by legislative action, and three by judicial decree.  (Nebraska abolished it legislatively, but voters subsequently reinstated it in a referendum.)  Four other states have a moratorium in place preventing anyone from being executed.  This period has been one of the most successful in the modern history of death penalty abolitionism.

And the politics of New Hampshire are not those of, say, Massachusetts.... While the state Senate and House are both controlled by Democrats, they needed votes from across the aisle to reach the two-thirds threshold to override Republican Governor Chris Sununu.  There are thus important lessons from New Hampshire about how abolitionists can be successful across the country — namely, by shifting the grounds of the debate so as not to be painted as soft on crime or out of touch with mainstream American values....

Traditionally, opponents of the death penalty have responded to [soft-on-crime] arguments by claiming that even the most heinous criminals are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their “right to have rights.”  Each of these arguments rejects the simple and appealing rationale for capital punishment: retribution.  But in doing so, it puts opponents of the death penalty on the side of society’s most despised and notorious criminals, of cop killers and of child murderers.  It is not surprising, then, that such arguments, while popular in philosophical and political commentary, have never carried the day in the debate about capital punishment in the United States.

New Hampshire abolitionists avoided this pitfall, changing the argument in ways that can and do appeal to a broader range of citizens.  They allied themselves with the plight of the families of murder victims.  “I am grateful to the many survivors of murder victims who bravely shared their stories with the Legislature this session, many of whom told us that the death penalty, with its requisite long legal process, only prolongs the pain and trauma of their loss,” said Democratic Senator Martha Hennessey in explaining her vote to override the veto.

They also avoided the soft-on-crime label by noting that the death penalty does not make citizens safer and that it is “archaic, costly, discriminatory and violent.”  And they enlisted conservative allies.  As one New Hampshire abolitionist said, “more conservatives than ever know the death penalty is a failed government program that does not value life, threatens innocent people, and wastes money.”

The campaign to abolish capital punishment succeeded in New Hampshire, just as it has succeeded elsewhere, because abolitionists resisted the temptation to engage with the red meat arguments of many death penalty supporters.  They appealed to American values of fairness, equal treatment, and pragmatism.  In so doing, they formed a coalition of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to “stop tinkering with the machinery of death.”

Prior related post:

• With legislative override of Gov veto, New Hampshire formally repeals its death penalty 

Alabama completes execution of Christopher Price seven weeks after delay based on dispute over execution methods

As reported in this prior post, Alabama was planning to execute Christopher Price seven weeks ago as punishment for his 1991 killing of a minister.  But the execution was called off that day because his death warrant expired before the Supreme Court vacated a lower court stay.  Tonight, as reported in this AP article, the execution was completed.  Here are the basics:

A man convicted of using a sword and knife to kill a country preacher during a 1991 robbery was put to death by lethal injection in Alabama on Thursday, weeks after he was initially scheduled to die. Christopher Lee Price, 46, became the second inmate put to death in Alabama in two weeks. The execution was carried out at Holman prison and he was pronounced dead at 7:31 p.m.

Price, who was nearly put to death in April before an execution warrant expired, sought a stay from the U.S. Supreme Court based on a challenge to the state's method of using three drugs during lethal injections. The nation's high court, by a 5-4 vote, refused to halt the execution Thursday night. The conservative majority did not give a reason for denying the stay.

Price had asked to instead die by nitrogen hypoxia, an execution method Alabama has legally authorized but not developed. His lawyers argued the method, which kills by depleting the body of oxygen, would be less painful than lethal injection.

Price sued the state over Alabama's current practices, and the inmate's attorneys contend the state is rushing to execute him two weeks before the trial date.... In a dissent Thursday, Justice Stephen Breyer wrote that the court should have delayed the execution until the trial could take place.

Justice Breyer's dissent from the denial of an execution stay, which was joined in full by Justice Ginsburg and in part by Justices Sotomayor and Kagan, is available at this link.

With legislative override of Gov veto, New Hampshire formally repeals its death penalty

As reported in this local press piece, "New Hampshire became the 21st state to repeal its death penalty Thursday, after a vote in the Senate to pass legislation over the objections of Gov. Chris Sununu." Here is more:

In a 16-8 vote after unusually brisk debate, senators passed an override measure with the necessary two-thirds of support to override Sununu’s veto, issued earlier this month. In a series of emotional pleas, some senators sided with governor, arguing that the prohibition served as a deterrent for the murder of law enforcement and provided justice that life imprisonment cannot.

But others argued repealing the punishment was a matter of humanity. “This question will be answered but not by political philosophy or alliances but by lifetimes of individual experiences that we all carry with us,” said Sen. Harold French, a Franklin Republican who voted to override Sununu's veto. “Today I will vote to voterride the veto of our governor. Because this vote is about our state and about what kind of state we are all going to be a part of.”

The vote followed an equally narrow vote in the House, which voted this month to override the veto with no votes to spare....

The repeal takes effect immediately, and according to the statute applies only to convictions from May 30, 2019 and onward.

“I have consistently stood with law enforcement, families of crime victims, and advocates for justice in opposing a repeal of the death penalty because it is the right thing to do,” Sununu said in a statement after Thursday’s vote. “I am incredibly disappointed that the Senate chose to override my veto."

As noted in prior posts linked below, supporters of this repeal claims the law would not be applied retroactively to the benefit of the one person on death row in the state, namely Michael Addison who was sentenced to death for the 2006 killing of a Manchester police officer.  But I am pretty sure no state in the modern era has yet to execute a previously condemned person even after a "prospective only" repeal of the death penalty, so Michael Addison is surely among those celebrating this capital repeal.

Prior related posts:

• After veto-proof vote, New Hampshire appears poised to be first state to repeal death penalty legislatively since 2013
• Will New Hampshire legislature this time override veto to finally repeal state's death penalty?

Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death

It has been a full quarter century since Justice Harry Blackmun famously stated in Callins v. Collins, 510 U.S. 1141 (1994), that he would "no longer tinker with the machinery of death."  But in the last 25 years, a whole lot of states have done a whole lot of tinkering with death machinery, and I have been especially well-positioned to observe Ohio's unique machinations.  And this new local article about the latest Buckeye tinkering, headlined "DeWine, prisons have no documents on Ohio’s new execution protocol," has me yet again amazed at what law, policy and practice looks like in this space.  Here are the details:

The Ohio Department of Rehabilitation and Correction has been working for months on Gov. Mike DeWine’s order to revamp Ohio’s execution protocol. But the department says it hasn’t generated a single email or other written communication related to the work.

The governor’s office suggests the lack of such documentation is intentional.  And that has critics accusing the administration of trying to avoid transparency in an endeavor that in the past has been riddled with problems carrying out the death penalty and obtaining the drugs to perform executions. “The execution process across the United States has been plagued by secrecy and a lack of transparency,” said Robert Dunham of the Death Penalty Information Center, a national group that gathers information about how capital punishment is practiced.

In Ohio, problems go at least as far back as 2014, when Dennis McGuire choked and gasped for about 10 minutes before dying after being administered a new, two-drug protocol. That prompted a three-year moratorium as prison officials came up with a three-drug protocol that still used midazolam — which has been used in botched executions in at least four states — as the first in the procedure.

Since 2017, Ohio has conducted four more executions and abandoned a fifth when prison workers couldn’t inject drugs into a man’s veins.  Then, earlier this year, U.S. Magistrate Judge Michael Merz issued a ruling that likened the Ohio protocol to “waterboarding” and said it “would feel as though fire was being poured” into a prisoner’s veins.

In response, DeWine postponed one execution and then three more as he ordered the corrections department to devise a new lethal injection protocol.  But as corrections officials did, they had to contend with accusations that the state was using subterfuge to obtain earlier execution drugs from manufacturers who were adamantly opposed to their use in carrying out the death penalty.

Seeking to get an idea of what drugs the state is thinking of using and how it plans to get them, The Dispatch filed an open records request in April with the corrections department for all of its internal and external communication regarding DeWine’s order and the development of the new protocol.  Hearing nothing, the paper last week asked about the status of the request.  It received a response the same day. “After investigation and review of our agency records, we have determined that we have no responsive records. Thank you for your patience,” spokeswoman Sara French said in an email.

While it might seem implausible that such a weighty matter as devising a new death-penalty protocol could be undertaken by a state agency without a single email or memo being generated, DeWine spokesman Dan Tierney seemed to say that was by design.  “Gov. DeWine agrees that execution protocol is a very sensitive issue, and that sensitivity may not be appropriate for general email or common written correspondence,” Tierney said in an email.  “The governor speaks with Director (Annette) Chambers-Smith regularly, and he will be receiving a full briefing on this issue soon. ″(The Department of Rehabilitation and Correction) remains focused on researching a new protocol using drugs that the state of Ohio can actually obtain.”...

Monica Nieporte, president and executive director of the Ohio News Media Association, said the state should not try to devise something as important as a new lethal injection protocol in secret. “Since it appears that the work done on this issue has largely been done through verbal conversation and, according to DRC, there is no supporting documentation that is public record, it makes it very difficult for journalists or citizens to determine what progress has been made on this topic,” she said in an email. “Hopefully as their research winds down and they are at the point of making recommendations, they will be providing some detailed explanations, including documentation about how they made their conclusions.”

At the risk of bad taste, I am tempted to joke based on the lack of any protocol paper trail that perhaps Ohio officials think it is important to avoid killing trees while they try to figure out a better way to kill people.

A few (of many) prior recent related posts:

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

Florida completes execution of killer of 10 women in 1984

As detailed in this AP article, a "serial killer who terrorized Florida with a murderous spree that claimed 10 women in 1984 was put to death Thursday, his execution witnessed by a woman who survived one of his attacks and aided in his capture."  Here is more:

Bobby Joe Long, 65, was pronounced dead at 6:55 p.m. Thursday following a lethal injection at Florida State Prison.  Long had no last words, simply closing his eyes as the procedure began, witnesses said.

The killer terrified the Tampa Bay area for eight months in 1984 as women began showing up dead, their bodies often left in gruesome poses.  Most were strangled, some had their throats slit, and others were bludgeoned.  Law enforcement had few clues until the case of Lisa Noland, who survived one of Long's attacks.  She witnessed Thursday's execution from the front row.

Just 17 in 1984, Noland was abducted by Long outside a church that year.  He raped her but ultimately let her go free.  She left evidence of his crimes on the scene and gave police details leading to his capture.  Long confessed to the crimes, receiving 28 life sentences and one death sentence for the murder of 22-year-old Michelle Simms. 

Noland positioned herself in the witness room where she hoped Long would see her.  "I wanted to look him in the eye. I wanted to be the first person he saw.  Unfortunately, he didn't open his eyes," she said.  "It was comforting to know this was actually happening."  She said she began to cry after she left the room once it was over.  “The peace that came over me is a remarkable feeling,” she said.

Another witness wore a polo shirt with a photo of one victim on the front and the words "Gone But Not Forgotten."  On the back were photos of all 10 slaying victims and the words, "The Ones That Matter."...

Investigators were baffled by the trail of bodies Long left around Tampa Bay.  Artiss Ann Wick was the first killed, in March 1984.  Nine others followed.  Law enforcement had few clues until Noland told her story. 

Noland said beforehand that she knew what she would have said if she could have addressed Long. Said Noland: "I would say 'Thank you for choosing me and not another 17-year-old girl.'"...

The execution was the first under Gov. Ron DeSantis, who took office in January.

Spotlighting racial divides in perceptions of crime and punishment

Just about every serious study of US criminal justice systems shows a different form of justice applies to black and white Americans.  And John Gramlich at Pew Research Center has this interesting new piece spotlighting many of the different perceptions of justice among black and white Americans.  I recommend the piece in full, and here are excerpts with a sentencing emphasis  (and with links from the original):

Black Americans are far more likely than whites to say the nation’s criminal justice system is racially biased and that its treatment of minorities is a serious national problem.  In a recent Pew Research Center survey, around nine-in-ten black adults (87%) said blacks are generally treated less fairly by the criminal justice system than whites, a view shared by a much smaller majority of white adults (61%).  And in a survey shortly before last year’s midterm elections, 79% of blacks — compared with 32% of whites — said the way racial and ethnic minorities are treated by the criminal justice system is a very big problem in the United States today.

Racial differences in views of the criminal justice system are not limited to the perceived fairness of the system as a whole.  Black and white adults also differ across a range of other criminal justice-related questions asked by the Center in recent years, on subjects ranging from crime and policing to the use of computer algorithms in parole decisions....

A narrow majority of Americans (54%) support the death penalty for people convicted of murder, according to a spring 2018 survey.  But only around a third of blacks (36%) support capital punishment for this crime, compared with nearly six-in-ten whites (59%).  Racial divisions extend to other questions related to the use of capital punishment.  In a 2015 survey, 77% of blacks said minorities are more likely than whites to be sentenced to death for committing similar crimes.  Whites were divided on this question: 46% said minorities are disproportionately sentenced to death, while the same percentage saw no racial disparities.

Blacks were also more likely than whites to say capital punishment is not a crime deterrent (75% vs. 60%) and were less likely to say the death penalty is morally justified (46% vs. 69%).  However, about seven-in-ten in both groups said they saw some risk in putting an innocent person to death (74% of blacks vs. 70% of whites)....

Some states now use criminal risk assessments to assist with parole decisions. These assessments involve collecting data about people who are up for parole, comparing that data with data about other people who have been convicted of crimes, and then assigning inmates a score to help decide whether they should be released from prison or not.  A 2018 survey asked Americans whether they felt the use of criminal risk assessments in parole decisions was an acceptable use of algorithmic decision-making. A 61% majority of black adults said using these assessments is unfair to people in parole hearings, compared with 49% of white adults.

Alabama and Tennessee both complete executions in same night

As reported in this extended AP piece, two states carried out executions this evening.  Here are the details:

A man convicted of killing his wife decades ago at a camping center he managed in Memphis was put to death Thursday in Tennessee.  Separately, a man condemned to die for his role in a quadruple killing that followed a dispute over a pickup truck was put to death Thursday evening in Alabama, declining to make any last-minute appeals in the hours preceding his execution.

Sixty-eight-year-old inmate Don Johnson was executed for the 1984 suffocation of his wife, Connie Johnson.  He was pronounced dead at 7:37 p.m. after a lethal injection at a maximum-security prison in Nashville.  He had initially blamed his wife's slaying on a work-release inmate who confessed to helping dispose of the body and who was granted immunity for testifying against Johnson.

Johnson became the fourth person executed in Tennessee since August.  The last two inmates executed in Tennessee chose the electric chair, saying they believed it offered a quicker and less painful death than the state's default method of lethal injection.

Johnson had spent half his life on death row and seen three execution dates come and go as his appeals played out in court, including challenges to Tennessee's lethal injection protocols.  The state's present default method is a three-drug combination that includes the sedative midazolam, which inmates have claimed causes a prolonged and excruciating death. Three more executions are scheduled for later this year in Tennessee.

Gov. Bill Lee announced Tuesday that he would not intervene, following "prayerful and deliberate consideration" of Johnson's clemency request. Religious leaders, including the president of the worldwide Seventh-day Adventist Church, to which Johnson belongs, had asked Lee to spare Johnson's life.  Supporters of clemency said Johnson had undergone a religious conversion and cited his Christian ministry to fellow inmates. Johnson is an ordained elder of the church in Nashville....

Alabama administered a lethal injection Thursday evening to 41-year-old Michael Brandon Samra.  Samra was pronounced dead at 7:33 p.m. following a three-drug injection at the state prison at Atmore, authorities said.

Samra and a friend, Mark Duke, were convicted of capital murder in the deaths of Duke's father, the father's girlfriend and the woman's two elementary-age daughters in 1997.  The two adults were shot and the children had their throats slit.  Evidence showed that Duke planned the killings because he was angry his father wouldn't let him use his pickup.

In a last statement, Samra made a profession of Christian faith.  "I would like to thank Jesus for everything he has done for me," Samra said as he lay strapped on a gurney with his arms extended. He ended with the word "amen."

After drugs began flowing, Samra went still and his chest heaved three times.  He took a few deep breaths and his head moved slightly. Then an officer checked to see if he was still conscious.  A few moments later, Samra's hands curled inward, his chest moved like he was taking some breaths and his mouth fell slightly agape.  The execution procedure began about an hour after the scheduled 6 p.m. start time, and Prison Commissioner Jeff Dunn said there was no particular reason for the delay. "There were no issues that I was aware of," Dunn said in a statement....

Though Duke and Samra were both originally convicted of capital murder and sentenced to death, Duke's sentence was overturned because he was 16 at the time, and the Supreme Court later banned executing inmates younger than 18 at the time of their crimes.

Samra was 19 at the time and asked the U.S. Supreme Court to delay his execution while the Kentucky Supreme Court considers whether anyone younger than 21 at the time of a crime should be put to death, but the justices refused.

New opinion memo from DOJ concludes FDA lacks jurisdiction to regulate execution drugs

As long-time readers know, state execution efforts have sometimes been thwarted in recent years because of an inability to access needed drugs for lethal injections. This new Washington Post article, headlined "Justice Department says FDA ‘lacks jurisdiction’ over death-penalty drugs," reports on the possible start to a new chapter in this long-running saga. Here are the details:

The Justice Department says in a new legal opinion that the Food and Drug Administration does not have authority over drugs used in lethal injections, a stance sure to be challenged by death-penalty opponents. The department’s Office of Legal Counsel said that “articles intended for use in capital punishment by a state or the federal government cannot be regulated as ‘drugs’ or ‘devices.’ ”

The legal opinion, issued this month, comes as states have struggled in recent years to obtain drugs for lethal injections, which remain the country’s primary method of execution even as the number of executions has declined.

In 2015, the FDA blocked Texas from importing shipments of an anesthetic from an overseas distributor, finalizing the decision two years later. The agency argued the importation was illegal because the drug, sodium thiopental, was not approved in the United States and was improperly labeled. It also cited a 2012 federal injunction barring the agency from allowing the drug’s importation.

Texas responded to the FDA’s move by suing the agency in early 2017, claiming the agency was interfering with the state’s responsibility to carry out its law enforcement duties. The lawsuit was filed shortly before President Trump took office. Trump has long been a supporter of capital punishment. while his Senate-confirmed attorneys general — Jeff Sessions, who left the post last year, and William P. Barr, who assumed the job this year — have also backed the practice.

The legal opinion from the Justice Department this month sides against the FDA and with Texas. It says that drugs intended for executions are different from any others, noting that “they exclusively inflict harm” and “are not intended to produce any benefit for the end user.” It expressly highlights “the narrowness of our conclusion,” saying that it does not address whether the FDA “has jurisdiction over drugs intended for use in physician-assisted suicide.”

But it also takes a broad view of the issues at hand, arguing that if the FDA had jurisdiction over drugs meant for executions, it would have similar power over other areas — such as firearms — which the agency has not sought to regulate.

The Justice Department’s opinion is unlikely to have any immediate effect, however, because the FDA is still operating under the 2012 injunction. It is not clear whether the Justice Department will seek to have that injunction lifted, a move that could spark a long legal tussle.

The opinion seems aimed at “giving a green light” to corrections officials to look abroad for drugs needed for executions, said Deborah Denno, a law professor at Fordham University and a death-penalty expert. “I think this has very broad ramifications, unfortunately,” Denno said in an interview. “This is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so.”

While European companies have objected to their products being used in executions, corrections officials could have more luck turning to countries such as China or India, Denno said. “It has the potential to open the floodgates,” she said....

The FDA, in defending its efforts to block states from importing unapproved sodium thiopental has cited the 2012 injunction relating to the drug. That ruling came after death-row inmates filed a lawsuit against the Obama administration, saying the FDA was acting unlawfully by exercising “enforcement discretion” to allow states to import unapproved sodium thiopental from an unregistered foreign facility.

Despite the 2012 order, however, states continued to order sodium thiopental from overseas. BuzzFeed News found that at least three states — Nebraska, Texas and Arizona — had tried to import drugs from a supplier in India despite getting warnings from the FDA in 2015.

The Texas lawsuit, filed in the waning days of the Obama administration, says the state alerted federal officials in June 2015 that its Department of Criminal Justice — which is responsible for the state’s executions — planned to “import thiopental sodium intended for law enforcement purposes.” The lawsuit said the state’s “foreign distributor” shipped 1,000 vials of the drug to Houston in late July 2015, and not long after, the drugs were impounded. According to the FDA, the agency also impounded a shipment intended for Arizona that same year. Texas officials said they had obtained the drugs legally and referred to the government’s actions as an “unjustified seizure.”

The OLC opinion is titled "Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions."  The opinion runs 26 pages and is available at this link.  Here is its concluding paragraph:

We conclude that articles intended for use in capital punishment by a State or the federal government cannot be regulated as “drugs” or “devices” under the FDCA. FDA accordingly lacks jurisdiction to regulate such articles for that intended use.

Chris Geidner, who did terrific reporting on these issues when at BuzzFeed News, has this lengthy tweet thread criticizing the substance of the OLC memo and concluding with just the right questions:

FINALLY: I'm not sure I get what the point of this OLC memo is.  To quote Madonna as Evita, "Where do we go from here?"  The injunction still exists.  This is OLC's opinion.  Is someone going to seek to have the injunction vacated?  Does DOJ think they can just ignore it?  What now?

"Individualized Executions"

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

States continue to botch lethal injection attempts.  The decision to move forward with such procedures without considering the health of the inmate has resulted in a series of brutal, horrific incidents.  In its Eighth Amendment jurisprudence, the Supreme Court has established that courts must give defendants individualized sentencing determinations prior to imposing a death sentence.  Woodson v. North Carolina proscribes the imposition of mandatory death sentences, and Lockett v. Ohio requires that courts examine the individualized characteristics of the offense and the offender, including allowing the defendant to provide mitigating evidence at sentencing.

This Article argues for the extension of the Eighth Amendment Woodson-Lockett principle to execution techniques.  The Court’s execution technique cases proscribe the imposition of punishments that create a substantial risk of inflicting pain.  As such, application of the Woodson-Lockett principle to executions would require that courts assess the imposition of such execution techniques on a case-by-case basis to determine the constitutionality of the technique — as applied to the particular inmate — prior to execution.

In Part I, the Article describes the recent epidemic of failed lethal injection executions and highlights the need for reform in this area.  Part II describes the Woodson-Lockett doctrine, and explores its prior applications.  Part III then explains why this doctrine ought to apply to execution techniques, not just the kind of punishment imposed.  Finally in Part IV, the Article argues for the adoption of this approach, highlighting its advantages both on individual and systemic levels.

Is the latest SCOTUS sparring in capital cases only likely to get worse and worse?

The question in the title of this post is prompted by today's Supreme Court developments in older capital cases, some of which I missed when just blogging here about the morning order list.   Specifically, I missed that Justice Alito penned a lenghty dissent to a stay in a capital case from Texas six week ago(!), which in turn prompted a four-page defense of the stay by Justice Kavanaugh.  (This discussion can be found at this link following the original stay.)   Adam Liptak summarizes all the action in the New York Times article headlined "Tempers Fraying, Justices Continue Debate on Executions."  Here are excerpts:

Several Supreme Court justices on Monday continued a heated debate on how to handle last-minute requests in death penalty cases, issuing a series of unusual opinions about actions the court had taken several weeks ago.

Continuing to fight those battles is an indication that feelings remain raw on a court that is increasingly divided over capital cases.

A guiding principle at the Supreme Court, Justice Stephen G. Breyer has said, is that “tomorrow is another day.” The court very rarely supplements its original rulings with later explanations and responses.

In one opinion, Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr., explained why they had voted in March to stay the execution of Patrick H. Murphy, a Buddhist inmate in Texas whose request that his spiritual adviser accompany him to the death chamber had been denied though Christian and Muslim chaplains were allowed....

Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, responded on Monday with a statement. The inmate’s delay in asserting his claim, Justice Alito wrote, should have justified letting his execution go forward....

In a footnote, Justice Alito continued a discussion of an even older case, from February, in which the court had allowed a Muslim inmate to be executed outside the presence of his Muslim imam although Christian chaplains were allowed. At the time, Justice Elena Kagan, writing for the court’s four liberal members, said the majority was “profoundly wrong.”...

In a third opinion on Monday, Justice Thomas, joined by Justices Alito and Gorsuch, wrote to “set the record straight” about why they had voted last month to allow the execution of an Alabama inmate, Christopher Lee Price, a move that had prompted an anguished middle-of-the-night dissent from Justice Breyer.

As might be obvious by my question in the title of this post, I think this sparring could get even more heated in part because the reduced number of executions in recent years heighten the stakes (and litigation opportunities) around each execution.

Noting how California's prosecutors keep pursuing death sentences despite execution moratorium, and what more Gov Newsom has in mind

This new lengthy New York Times article discusses the (unsurprisingly) reality that local prosecutors in California keep bringing capital charges even though the state's chief executive has impose a moratorium on execitions. The piece is headlined "California Has a Moratorium on Executions. Prosecutors Want New Death Sentences Anyway."  Here are excertps:

Gov. Gavin Newsom, a Democrat, issued a moratorium in March on executions in the state, which has more death row inmates than anywhere else in the Western Hemisphere. But that decision has not stopped local prosecutors from seeking new death sentences, underscoring the divide in the state between conservative prosecutors and liberal reformers like the governor.

And as liberal as California voters are generally, as recently as 2016 they rejected a ballot measure that would have abolished capital punishment, and approved another one to fast-track executions.

These divisions, experts say, are setting the backdrop for what could be a contentious fight as Mr. Newsom takes new steps beyond the moratorium to abolish capital punishment. For now, the moratorium amounts to temporary reprieves for each of the 737 men and women on California’s death row, which will last for the duration of his time as governor.

“It’s got to be really confusing for the average citizen who sees both things going on and doesn’t understand how all of the above can be occurring,” said Michele Hanisee, the president of the Association of Deputy District Attorneys in Los Angeles County. She is seeking a death sentence in one of her cases: The man accused of being a serial killer, Alexander Hernandez, who is charged with killing five people in a shooting rampage in the San Fernando Valley in 2014.

“The simple answer is this: The district attorneys of the state of California took an oath to uphold and follow the law,” Ms. Hanisee said. “I think the governor probably did too, but he doesn’t care.” The governor, she added, does “not have the legal authority to tell them not to seek death or not to follow the law.”

New death sentences in California have declined in recent years — 2018 was a record low, with five new sentences. The drop aligns with a national trend, as public support for capital punishment has waned and juries have been reluctant to impose death sentences in the face of evidence of racial disparities and high-profile exonerations. Before Mr. Newsom’s moratorium, 20 other states, including most recently Washington and Delaware, had abolished the practice....

California, while maintaining a large death row, has not executed anyone since 2006. There were longstanding legal challenges to the state’s lethal injection protocol that had halted executions even before Mr. Newsom’s moratorium.

In an interview, Mr. Newsom said his administration was considering several new steps to dismantle the state’s capital punishment system, and that his moratorium was a first step on what he hoped was a path that ended with abolition. He said his advisers were studying how he could commute the sentences of current death row inmates to life without parole. Mr. Newsom has the power to commute sentences in which the inmate has only one felony, but more than half of the death row population has at least two felonies; to commute those sentences would require approval from the State Supreme Court.

Mr. Newsom’s advisers are focusing on the Supreme Court’s decision to block several pardons or commutations — though not for death row inmates — issued by former Gov. Jerry Brown before he left office in January. Those rejections were the first time in decades the court had blocked a governor’s commutations, and Mr. Newsom has asked the court for an explanation. He hopes the explanation will offer some guidance “that will allow us to form better judgment on next steps if we want to look to commutations on the capital punishment side.”...

Mr. Newsom also said he was discussing with the attorney general’s office what role the state could play in blocking prosecutions of new death sentences. But legal experts say this power is limited: The state could decline to defend capital cases on appeal, but it does not have the power to order district attorneys, who are elected at the county level, to not seek death.

One possibility is that the attorney general could take cases away from local prosecutors. But experts say that is unlikely and would be unprecedented. “I have not seen any indication from our attorney general that they want to impose the governor’s view and take cases away from us so that we cannot seek capital punishment,” said Anne Marie Schubert, the Sacramento County district attorney, who is part of the prosecution in the Golden State Killer case.

Ms. Schubert added that, “Capital punishment is the law in California, and just because Gavin Newsom has a personal opposition to it doesn’t mean that we as prosecutors abandon our obligation to enforce the law in the appropriate cases. I’m not this zealot about the death penalty, but it is the law.”

Prior related posts:

• New California Gov to order moratorium on executions in his state 
• California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions
• California DAs assail Gov Newsom's execution moratorium 

"Unusual State Capital Punishments"

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

This article argues that many of the states that retain the death penalty currently violate their own constitutions because their use of the death penalty is unusual.  Specifically, the death penalty in some states, particularly when assessed in an intra-state manner examining its use across counties, suggests that the rareness of its use might mean that it has become an unusual punishment.  As a result, this article explores the twenty-six capital states that proscribe unusual punishments and categorizes them based on the likelihood that their utilization of the death penalty violates their state constitution.

Part I of the article explains the concept of unusualness under the Eighth Amendment as developed by the United States Supreme Court in its capital cases.  In Part II, the article explores the Eighth Amendment analogues in state constitutions that similarly prohibit unusual punishments and the conjunctive and disjunctive language of the state constitutions, before demonstrating how the Eighth Amendment approach could translate to the analysis of unusualness under state constitutional law.  Part III then examines the states that have unusual proscriptions in their state constitutions, and categorizes the states based on the likelihood that their use of the death penalty violates their state constitution.  Finally, in Part IV, the article argues for an expansive application of state constitutions to bar unusual state capital punishments, exploring the policy reasons supporting this analytical move.

Will New Hampshire legislature this time override veto to finally repeal state's death penalty?

As noted in this post last month, a lopsided vote in favor of a bill to repeal the death penalty in the New Hampshire legislature suggested that the state would be able to abolish capital punishment despite the opposition of the state's Governor.  On Friday, as reported in this local article, the expected veto occurred, setting up the question that is the title of this post.  The local article is headlined "Sununu vetoes repeal of seldom-used death penalty as large delegation of police applaud," and here are excerpts:

Gov. Chris Sununu vetoed legislation to repeal the death penalty Friday surrounded by about 30 state, county and local police officers at the Michael Briggs Community Center, named for the officer whose killer is the state’s lone occupant of death row.

The governor acknowledged the bill he vetoed received bipartisan support in the House and Senate that was “pretty overwhelming.”...

Michael Addison, already a convicted felon when he shot officer Briggs, is the only person on death row in New Hampshire, which hasn’t executed anyone since 1939.  A recurring theme among repeal opponents has been the fear that Addison’s sentence will be converted to life without parole if the death penalty is repealed, even though repeal advocates argue that the law can’t be applied retroactively.

After the veto signing, Sununu said he believes in the death penalty as a matter of sound public policy and that he would have vetoed a repeal whether or not the state had an inmate on death row. “The reason is quite obvious,” he said, “when you talk to law enforcement and ask if this serves as a deterrent, they say ‘absolutely.’ People in this state understand that this is a tool and when you use it justly and with prudence, as New Hampshire does, it’s appropriate.”...

Sununu said he would do everything he could to “engage citizens in this process.”

“When you get to sustaining or overturning a veto, a lot of dynamics come into play,” he said. “So we’ll go back and talk to folks. We’ll keep fighting for it.  The vote was pretty overwhelming, to be honest.  Politics didn’t come into play.  I think it was folks not really understanding what this means to law enforcement and their families.”

Because I do not know the particulars of the New Hampshire legislature and local politics, I am not able to make a confident prediction on a veto override under the circumstances. Notably, the legislature failed to override a similar veto of a similar bill last year, but the 2018 election may have changed the numbers enough to change the outcome. But, as this news article suggests, it would appear the Governor is eager to take steps to preserve his veto and thus the state's death penalty.

Prior related post:

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

Georgia completes execution after courts reject array of final appeals

As reported in this local article, "Scotty Morrow [with a]ppeals exhausted, clemency denied, ... at 9:38 p.m. .. became the first person executed by the state of Georgia this year."  Here is more about his crime and filed appeals: 

The father of two and grandfather of four said in his petition for clemency that he thought every day about what happened on Dec. 29, 1994.  Spurned over the phone by his ex-girlfriend, Barbara Ann Young, Morrow drove to her house and fatally shot her and her friend, Tonya Woods.  He shot a third woman in the face and arm but she survived. The murders were witnessed by Young’s 5-year-old son....

Morrow is the 73rd person executed by the state since the death penalty was reinstated in 1976, and the 50th by lethal injection. “Tonight, justice was carried out for the families of Tonya Woods and Barbara Ann Young and the injured LaToya Horne,” said Hall County District Attorney Lee Darragh, who witnessed the execution.

The U.S. Supreme Court had denied Morrow's final appeal to stay the execution at about 9 p.m. Thursday, two and a half hours after his defense team petitioned the nation's highest court.

Morrow was denied clemency Wednesday by the state Board of Pardons and Paroles. His attorneys argued that unplanned crimes of passion, such as the ones Morrow was convicted of, are rarely punished by death. They also pointed out that jurors in Morrow’s murder trial heard little about his traumatic childhood....

A state court judge overturned Morrow’s sentence in 2011, saying that his lawyers had not afforded him proper representation. A new trial was ordered, but the Georgia Supreme Court later reversed that decision and reinstated the death sentence.

On Tuesday, a Butts County judge dismissed a petition claiming Morrow’s death sentence was unconstitutional because it was improperly imposed. Lawyers for the Gainesville man said the judge in Morrow’s criminal trial decided which of the two murders he committed warranted the death penalty, a decision they said the U.S. Supreme Court has ruled must be made by jurors.  The Butts County judge on Wednesday agreed with attorneys for the state that those claims had already been rejected by higher courts. On Thursday, the state Supreme Court agreed in a unanimous decision. The court described Morrow’s appeal “as lacking in arguable merit” and it also denied a request from his lawyers for a stay of execution....

Prison officials testified Morrow was a model inmate who sought redemption for his crimes. His son and namesake said he was a positive influence on his four grandchildren.  Counselors told the parole board he had been fully rehabilitated. But the parole board was unswayed, denying Morrow’s last, best chance at survival.

Texas completes another execution of another killer involved in notorious hate crime

As reported in this local article, headlined "Texas executes John William King in racist dragging death of James Byrd Jr.," the Lone Star State has completed another notable execution.  Here are the basics:

It’s been more than two decades since an infamous hate crime in East Texas, where three white men were convicted of chaining a black man to the back of a pickup truck, dragging him for miles and then dumping the remains of his body in front of a church.

On Wednesday evening, John William King, 44, became the second and final man to be executed in the 1998 murder case of James Byrd Jr. Lawrence Brewer was put to death in 2011 for the crime, and Shawn Berry is serving a life sentence.

King had previously been involved in a white supremacist prison gang, and he was notoriously covered in racist tattoos, including Ku Klux Klan symbols, a swastika and a visual depiction of a lynching, according to court documents. But King maintained that he was innocent in Byrd’s murder — claiming that Berry dropped him and Brewer off at their shared apartment before Byrd was beaten and dragged to death.

In a last-minute appeal, King’s attorney argued that a recent U.S. Supreme Court ruling entitled his client to a new trial because his original lawyers didn’t assert his claim of innocence to the jury despite King’s insistence. The Texas Court of Criminal Appeals narrowly rejected this appeal in a 5-4 ruling Monday, and the U.S. Supreme Court ruled against stopping the execution about 30 minutes after it was scheduled to begin Wednesday.

After the ruling, King was taken from a holding cell and placed on a gurney in the death chamber and hooked up to an IV. He had no personal witnesses at his execution and spoke no final words, but he did provide a written statement beforehand, stating "Capital Punishment: Them without the capital get the punishment."  He was injected with a lethal dose of pentobarbital at 6:56 p.m., and pronounced dead 12 minutes later, according to the prison department.

Two of Byrd’s sisters and his niece planned to watch King's death. One of the sisters, who also watched Brewer's execution in 2011, told The Texas Tribune Tuesday that she didn’t understand why King’s case was tied up for so long with numerous appeals. He was sentenced to death in February 1999. “He wants to find a way not to die, but he didn’t give James that chance,” said Louvon Harris. “He’s still getting off easy because your body’s not going to be flying behind a pickup truck being pulled apart.”...

Before the execution, Harris said King's death would bring her some closure, but she will still have to be involved in Berry’s case as he becomes eligible for parole in 2038.

Notably, this was only the fourth execution in all of the US so far in 2019.  For telling contrast, consider that 10 years ago, there were 24 executions in 2009 before the end of April; and 20 years ago, there were 40 executions in 1999 before the end of April.  Were the pace of just one execution per month to continue, we would see in 2019 the fewest total number of executions in the United States in more than 30 years.

However, as this upcoming executions page reveals, there are already five executions in five different states scheduled for May 2019.  If all those executions are carried out, the pace for nationwide executions in 2019 would be comparable to the pace in 2017 and 2018.

California DAs assail Gov Newsom's execution moratorium

Four California district attorneys, Anne Marie Schubert, Michael Hestrin, Lisa Smittcamp and Gilbert Otero, have this notable new CNN commentary under the headline "California Gov. Gavin Newsom's death penalty moratorium is a disgrace."  Here is how it gets started:

Gov. Gavin Newsom's blanket moratorium on California's death penalty is a slap in the face to crime victims and their families who have waited years for justice.  With the stroke of his pen last month, Newsom single-handedly undermined our state's democratic values and our criminal justice system.

Democracy embodies a government where the people hold the ruling power either directly or through elected representatives.  In California, the people have exercised their power repeatedly in voting to keep the death penalty for the state's most horrific killers.  In fact, less than three years ago, California voters made this clear when they rejected an initiative, supported by Newsom, to abolish the death penalty and instead passed an initiative to ensure its fair and efficient implementation.

When Newsom campaigned for governor, he explicitly asserted that he would respect the will of the voters regarding the death penalty.  So much for that promise.  Instead, Newsom disregarded the voters in favor of his personal opinion and granted leniency to those facing the death penalty, including serial killers, cop killers, mass shooters, baby killers and sexual sadists.

In doing so, Newsom damaged the very fabric of our criminal justice system -- trial by jury -- where community members, not just one person in a position of power, make decisions affecting life and liberty.  Newsom's unilateral decision to ignore jury verdicts imposing the death penalty is not just an arbitrary exercise of power, it is a gross miscarriage of justice.

In support of his moratorium, Newsom also made broad sweeping statements, often cited by the American Civil Liberties Union and other death penalty opponents, including cautions about racism and claims that some on death row may be innocent.  If Newsom has concerns about specific cases, he should examine those cases individually rather than granting mercy to everyone on death row.  After all, Newsom has the powers of clemency and commutation as a remedy if he sees actual proof that someone was wrongfully convicted.

But looking at the facts of cases isn't something Newsom seems to want to do.  Why?  It could be because the facts are so horrific that one cannot justify leniency to these killers.

Prior related posts:

• New California Gov to order moratorium on executions in his state 
• California Gov Newsom, on heels of execution moratorium order, now talking up halt to any capital prosecutions

Reviewing Ohio's (now-suspended) execution realities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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