Sentencing Law and Policy

Should Alabama's next scheduled nitrogen gas execution be video recorded?

The question in the title of this post is prompted by this AP piece discussing litigation over the nitrogen gas execution scheduled in less than two weeks in Alabama.  Here are excerpts: 

The state of Alabama asked a judge Friday to deny defense lawyers’ request to film the next execution by nitrogen gas in an attempt to help courts evaluate whether the new method is humane.

The request to record the scheduled Sept. 26 execution of Alan Miller was filed by attorneys for another man facing the death penalty, Carey Dale Grayson. They are challenging the constitutionality of the method after Alabama carried out the nation’s first execution by nitrogen gas in January, when Kenneth Smith was put to death.

“Serious constitutional questions linger over Alabama’s nitrogen hypoxia protocol. To date, the only instance of a judicially sanctioned execution — that of Kenneth Eugene Smith — using nitrogen did not proceed in the manner defendants promised,” lawyers for inmate Carey Dale Grayson wrote. Grayson is scheduled to be executed in November with nitrogen gas.

Witnesses to Smith’s execution described him shaking on the gurney for several minutes as he was put to death by nitrogen gas. Alabama Attorney General Steve Marshall declared the execution was a “textbook” success. Attorneys for Grayson wrote that, “one way to assist in providing an accurate record of the next nitrogen execution is to require it be videotaped.”

The lethal injection of a Georgia man was recorded in 2011.  The Associated Press reported that video camera and a camera operator were in the execution chamber.  Judges had approved another inmate’s request to record the execution to provide evidence about the effects of pentobarbital.  A 1992 execution in California was recorded when attorneys challenged the use of the gas chamber as a method of execution.

The Alabama attorney general’s office on Friday asked U.S. District Judge R. Austin Huffaker, Jr. to deny the request. “There is no purpose to be served by the contemplated intrusion into the state’s operation of its criminal justice system and execution of a criminal sentence wholly unrelated to this case,” state attorneys wrote in the court filing.

Rounding up some notable new capital punishment pieces

In recent posts, I have already covered notable capital punishment adminstration stories from Florida and Missouri and South Carolina.  And as news and commentary on death penalty issues keeps emerging from states and nationally, an abridged round-up of notable recent pieces catching my eye seemed in order:

From 10News, "Gov. Lee says Tennessee is working to resume executions, after sudden halt in 2022"

From the Daily Mail.com, "Trump reveals he'll bring BACK the federal death penalty and expand it to cover these sick crimes... do you agree?"

From FITSNews, "Capital Punishment: Line. Them. Up. And put them down…"

From The Journal, "The weight of the wait 30 years after Kansas death penalty law"

From the Kansas City Star, "Kris Kobach: The only problem with Kansas’ death penalty is that it takes too long"

From the New York Times, "America Does Not Need the Death Penalty"

From the Pittsburgh Post-Gazzette, "Editorial: Baby Leon Katz deserves justice. Pursuing the death penalty will only delay it"

From Salon, "The end of the abolition era: Democrats quietly drop their opposition to the death penalty"

From USA Today, "Death penalty in the US: Which states still execute inmates, who has executed the most?"

Florida completes execution of man 30 years after murder and rape of siblings

As reported in this AP article, a "A Florida man convicted of killing a college freshman and raping the murder victim’s older sister while the siblings camped in a national forest 30 years ago was executed Thursday."  Here is more:

Loran Cole, 57, received a lethal injection and was pronounced dead at 6:15 p.m. at Florida State Prison for the 1994 killing of the 18-year-old student. Cole also was serving two life sentences for rape.

Cole and a friend, William Paul, befriended the two college students in the Ocala National Forest, court records showed. After talking around a fire, the men offered to take the siblings to see a pond.  While away from the campsite, Cole and Paul jumped the victims and robbed them, according to the records.

The brother, 18, who was a student at Florida State University, was beaten and had his throat slit and left in the forest.  His sister, then a 21-year-old senior at Eckerd College, was taken back to the campsite, where Cole tied her up and raped her, according to the record.  The woman was left tied to a tree overnight and raped again the next day. She eventually managed to free herself and flagged down a driver for help.  Police found her brother’s body lying face down on the ground, according to court records.

Paul and Cole were both convicted of first-degree murder.  Paul was sentenced to life in prison....

The U.S. Supreme Court denied Cole’s final appeal earlier Thursday.  His lawyers had raised several points in seeking a stay of execution, including the fact that Cole was an inmate at a state-run reform school where he and other boys were beaten and raped.  The state has since apologized for the abuse and this year passed a law authorizing reparations for inmates at the now-shuttered reform school.  The lawyers also argued Cole shouldn’t be executed because he was mentally ill and had brain damage and Parkinson’s disease.

South Carolina Supreme Court takes up pacing of state execution plans

As reported in this new AP piece, the "South Carolina Supreme Court won't allow another execution in the state until it determines a minimum amount of time between sending inmates to the death chamber." Here is more:

The state's next execution, scheduled for Sept. 20, is still on for inmate Freddie Eugene Owens.  It would be the first execution in South Carolina in over 13 years after the court cleared the way to reopen the death chamber last month.

But as it set Owens' execution date Friday, the court also agreed to take up a request from four other death row inmates who are out of appeals to require the state to wait at least three months between executions.  In its response, state prosecutors suggested setting the minimum at no longer than four weeks between executions.

Currently, the Supreme Court can set executions as close together as a week apart.  That accelerated schedule would rush lawyers who are trying to represent multiple inmates on death row, a lawyer for the inmates wrote in court papers.  Prison staff who have to take extensive steps to prepare to put an inmate to death and could cause botched executions, attorney Lindsey Vann said.

Neither argument is a good reason to wait for three months, state prosecutors responded in offering up to a four-week delay.  “The Department of Corrections staff stands ready to accomplish their duty as required by our law with professionalism and dignity,” Senior Deputy Attorney General Melody Brown wrote in a response drafted after speaking to prison officials....

South Carolina has held executions in rapid succession before.  Two half brothers were put to death in one night in December 1998.  Another execution followed on each of the next two Fridays that month, with two more in January 1999.

UPDATE: As reported in this press piece, the "South Carolina’s Supreme Court promised [on August 30] it would wait at least five weeks between putting inmates to death as the state restarts its death chamber with up to six executions looming."

Former Prez Trump details his proposals for "tough new sentences on illegal alien criminals"

This new Daily Signal article, headlined "Trump Pledges Death Penalty for Criminal Illegal Aliens Found Guilty of ‘Child or Woman Sex Trafficking’," reports on some of the sentencing comments today of former Prez Donald Trump when he was speaking at the southern border.  Here are excerpts:

With completed border wall to his right and unused construction materials to his left, former President Donald Trump told reporters Thursday in Arizona that if he wins the Nov. 5 election and returns to office in January, he will impose the death penalty on sex traffickers.

“We will seal the border, stop the invasion, and launch the largest deportation effort in American history. We will impose tough new sentences on illegal alien criminals,” Trump said, adding that “these include: [a] 10-year mandatory minimum sentence for anyone guilty of human smuggling; a guaranteed life sentence for anyone guilty of child trafficking; and a death penalty for anyone guilty of child or woman sex trafficking.”

Trump named other crimes that should result in the death penalty, such as “killing our police, sheriffs, Border Patrol, ICE, or [other] law enforcement officials.”

“Federal law allows for prosecutors to seek the death penalty against child sex traffickers if the victim is killed, or a life sentence if the victim survives,” Charles “Cully” Stimson, deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal.

Some prior related posts:

• Former Prez Trump again talking up the death penalty as a way to address drug problems
• Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration 
• Noticing a notable capital shift in Democrats' campaign platform

Noticing a notable capital shift in Democrats' campaign platform

HuffPost has this notable new piece noting a notable new shift in one party's platform on a notable old punishment.  The piece headlined "Democrats Scrub Death Penalty Opposition From Campaign Platform: For the first time in more than a decade, the Democratic Party platform includes no mention of abolishing the death penalty."  Here are excerpts from a piece covering a lot of interesting ground:

In 2016, the Democratic Party became the country’s first major political party to formally call for abolishing the death penalty.  The party’s platform that year, released in the aftermath of a high-profile botched execution, called the punishment “cruel and unusual,” “arbitrary and unjust,” expensive to taxpayers and ineffective in deterring crime.  The document also nodded to the people exonerated from death row as evidence of the risk that the government will kill innocent people.

During the 2020 campaign, the Democratic platform reiterated support for abolishing the death penalty.  When Joe Biden entered office the following year, he became the first president to publicly oppose capital punishment — a dramatic shift from his time in the Senate, when he once bragged that the sweeping crime bill he was pushing did “everything but hang people for jaywalking.”

However, as his term winds down, Biden has little to show for the party’s promise to abolish capital punishment.  On Monday, the Democrats approved their 2024 platform, which includes no mention of the death penalty.  This year’s platform marks the first time since 2004 the platform has not mentioned the death penalty (the 2008 and 2012 platforms called for making the punishment less arbitrary)....  The Democratic National Committee did not respond to an email asking if the party still supports abolishing the death penalty....

Meanwhile, Republicans are gearing up for another execution spree if Trump wins reelection.  Project 2025, an 887-page document outlining plans for a second Trump presidency released by a coalition of conservative groups, suggests that Trump execute every remaining prisoner on death row.  The document also envisions pursuing the death penalty in cases involving violence and sexual abuse of children.  In a footnote, the document notes that this would require convincing the Supreme Court to overrule its previous findings on when the death penalty is appropriate, but that “the [Justice] department should place a priority on doing so.”  Trump reportedly plans to announce his support for expanding the death penalty to non-homicide crimes....

In addition to dropping any mention of the death penalty, this year’s Democratic platform noticeably backs away from several criminal justice reforms the party embraced in 2020, when the police killing of George Floyd prompted nationwide protests against police brutality.  The criminal justice section of the 2020 platform opens by declaring that the system is “failing” to keep people safe and deliver justice.  It contrasts the promise of America as the “land of the free” with the reality that the U.S. has the highest rate of incarceration in the world and calls for “dramatically” reducing the number of people held in prisons and jails.

The 2020 platform includes support for several specific policies that are either absent from the 2024 platform or have been considerably toned down, including: ending life-without-parole sentences for people under 21, banning police from using chokeholds, decriminalizing cannabis, eliminating cash bail and repealing mandatory minimum sentences.

This year’s platform makes no mention of mass incarceration.  Instead, it describes the need to “fund the police” and touts DOJ funding for more police officers.  The platform claims Biden “took action to enhance public trust” by signing a “historic” executive order directing federal law enforcement agencies to ban chokeholds “unless deadly force is authorized” — a move described by civil rights groups as only a first step on police reform.

Prior related post:

• Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration 

Notable battle over death row defendant's innocence claim in Missouri

The New York Times has this new piece, headlined "Prosecutors to Face Off Over Innocence Claim by Prisoner on Death Row," reporting on the people behind a notable legal fight surrounding a defendant scheduled to be executed by the state of Missouri next month.  Here is how it starts:

A man facing execution in Missouri next month will be in court on Wednesday for what could be his last chance to prove his innocence.

The guilt of the man, Marcellus Williams, has been challenged for years, and he has come close to execution twice. But the hearing on Wednesday in St. Louis County will be the first time that a court will consider DNA evidence that could exonerate him.

The case is notable because it has put two law enforcement officials, the local prosecutor and the state attorney general, on opposite sides. The prosecutor, Wesley Bell, supports Mr. Williams’s bid for exoneration and has filed a 63-page motion to overturn his conviction. The attorney general, Andrew Bailey, has argued that Wednesday’s hearing should not even take place.

Mr. Bell, a Democrat, recently defeated U.S. Representative Cori Bush in the Democratic primary for her House seat in a heavily Democratic district, so he will very likely be heading to Congress in January. Mr. Bailey, a Republican who was appointed to his office midterm to fill a vacancy, fended off a primary challenge this month and is also likely to win the general election in the deeply red state.

In his short time in office, Mr. Bailey has opposed three wrongful-conviction claims, going so far as to try to keep people in prison after they have been exonerated. In the Williams case, he has asked both the trial court and the State Supreme Court to block the hearing.

UPDATE: Thanks to a helpful commentor, I see there is new breaking news in this case: "Missouri death row inmate agrees to new plea in deal that calls for life without parole." The latest:

A Missouri death row inmate on Wednesday dropped his innocence claim and entered a new no-contest plea in an agreement that calls for a revised sentence of life in prison without parole.

But the Missouri Attorney General’s Office opposes the new consent judgment and will appeal in an effort to move ahead with the scheduled Sept. 24 execution of Marcellus Williams.

ANOTHER UPDATE: Via CBS/AP, "Missouri Supreme Court blocks agreement that would have halted execution of death row inmate Marcellus Williams"

Notable new DPIC analysis of exonerations for those sentenced to death

The Death Penalty Information Center (DPIC) has this notable new analysis of death row exonerations. Here is how the report, which is titled "New Analysis: Innocent Death-Sentenced Prisoners Wait Longer than Ever for Exoneration," gets started:

On July 1, after waiting 41 years for his name to be cleared, Larry Roberts became the 200th person exonerated from death row.  A new Death Penalty Information Center analysis finds that Mr. Roberts’ experience illustrates a troubling trend: for innocent death-sentenced prisoners, the length of time between wrongful conviction and exoneration is increasing.  In the past twenty years, the average length of time before exoneration has roughly tripled, and 2024 has the highest-ever average wait before exoneration, at 38.7 years.  Our research suggests that two of the factors contributing to this phenomenon are procedural rules restricting prisoner appeals and resistance by state officials to credible claims of innocence.

"Regarding the Other Death Penalty"

The title of this post is the title of this relatively short piece just out in the Columbia Law Review Forum and authored by Kempis Songster, Terrell Carter & Rachel López.  Here is how it starts:

In his compelling new book, Invisible Atrocities, Professor Randle DeFalco explores the function of the aesthetics of violence in international law.  In particular, he questions international law’s preference for sanctioning spectacular demonstrations of violence rather than more banal, bureaucratic actions that cause massive scales of suffering and misery.  The book resonated with us because we’ve seen the same dynamic at work in U.S. criminal law with respect to society’s views on two forms of the death penalty: capital punishment and life without parole (LWOP).

Two of us, Kempis Songster and Terrell Carter (affectionately known as Ghani and Rell), intimately understand the invisibility of the harm DeFalco describes.  Our sentence — a sentence of life without parole — was sold by the anti–death penalty movement as the more humane alternative to capital punishment.  Yet, since our miserable state of existence serving life without parole tainted a word so full as “life,” we believe that this sentence “is more aptly called death by incarceration” (DBI).  Taking inspiration from DeFalco’s book, we aim to bring visibility to the slow but fatal violence of death by incarceration.

Notable Sixth Circuit panel habeas opion reversing Ohio death sentence in part "due to the trial court judge’s bias and misconduct"

A helpful reader made sure I did not miss the notable panel opinion issued by the Sixth Circuit earlier this week in Jackson v. Cool, No. 21-3207 (6th Cir. Aug. 8, 2024) (available here). The start of the unanimous opinion will highlight why it seems notable:

The Great Writ of Habeas Corpus is an extraordinary remedy that “guard[s] against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotation marks omitted).  This case is the epitome of such an extreme judicial malfunction.

Petitioner Nathaniel Jackson was convicted of a capital offense and sentenced to death.  But Jackson’s sentencing proceeding was blatantly unconstitutional at its core due to the trialcourt judge’s bias and misconduct, as well as his exclusion at sentencing of relevant mitigating evidence.  The prejudicial judicial bias and misconduct included numerous ex parte communications between the judge and prosecutor regarding substantive sentencing issues and the ghost writing by the prosecutor of the judge’s opinion sentencing Jackson to death.  In state court, when this unethical conduct came to light, the Ohio appellate courts publicly reprimanded the trial judge and ordered him to conduct new sentencing proceedings: the judge was to “personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry.”

On remand, Jackson moved to present three additional volumes of mitigating evidence.  The trial judge denied the motion, and he orally resentenced Jackson based on the stale, ten-yearold mitigation record.  A few hours after the resentencing hearing concluded, the judge issued a second opinion sentencing Jackson to death that was functionally identical to the original, corrupted opinion and contrary to the Ohio Court of Appeals’ specific instructions on remand. Nevertheless, the Ohio appellate courts affirmed Jackson’s sentence.  Jackson then filed a petition for a writ of habeas corpus in federal district court.  The district court granted Jackson’s petition on his claim that he was unconstitutionally denied the opportunity to present relevant mitigating evidence at his resentencing proceedings, but it denied Jackson’s other claims, including that the trial judge was unconstitutionally biased.  The warden appeals the district court’s habeas grant, and Jackson cross appeals regarding his judicial-bias and ineffective-assistance-of-counsel claims.

We affirm the district court in part and reverse in part.  We first hold that Ohio’s standard for assessing the potential for judicial bias is contrary to clearly established federal law as defined by the Supreme Court. And on de novo review, Jackson has demonstrated that the trial judge was unconstitutionally biased.  Second, the Supreme Court has clearly established that when a trial court is determining whether to impose the death penalty, capital defendants have a right to present any and all relevant mitigating evidence supporting a sentence less than death, including at resentencing proceedings, and Ohio’s failure to provide Jackson that right violated the Eighth Amendment.  Therefore, we affirm the district court’s issuance of a writ of habeas corpus on Jackson’s mitigating-evidence claim, reverse the district court’s denial of Jackson’s habeas petition on his judicial-bias claim, and remand for further proceedings consistent with this opinion.

Utah completes its first execution in 14 years

As reported in this USA Today article, "Utah executed a death row inmate for the 1998 murder of his then-girlfriend's mother on Thursday, the 12th execution in the nation this year and the state's first since a firing squad execution in 2010."  Here is more:

Taberon Dave Honie, 48, was executed by lethal injection and pronounced dead on Thursday, at 12:25 a.m. Mountain Time, according to the Utah Department of Corrections.  Honie's execution came nearly seven hours after Texas executed Arthur Lee Burton on Wednesday for the murder of Nancy Adleman, a 48-year-old mother of three who was out on a jog in Houston in 1997.

Honie was convicted for the murder of 49-year-old Claudia Benn, a substance abuse counselor for Utah's Paiute Tribe and a devoted grandmother of three. Benita Yracheta, Benn's daughter, told USA TODAY on Monday that she feels relief that she can put her mother's brutal death behind her, saying that justice is "finally happening" and at least Honie could prepare for the day. "My mom, she never knew her death date," she said. "She didn’t know she was gonna die that night." ....

There isn't "much similarity at all" between Honie's execution and Ronnie Lee Gardner's execution by firing squad in 2010, said Pat Reavy, a reporter with KSL.com who witnessed both executions, at the press conference. "I guess there's a peaceful way to put someone to death," said Reavy about Honie's execution "That's what this was."  Reavy described the firing squad execution as more traumatic. "The firing squad execution I thought was much more violent," said Reavy. "It shakes you, it's just so loud." While Honie's execution took longer, he adds that it really was "like watching a person fall asleep and not wake up again."...

Benn was babysitting her three granddaughters on July 9, 1998.  Her daughter, Carol Pikyavit, had been living with Benn along with her 2-year-old daughter, whom she shared with Honie, when Honie called.  He was drunk and angry, and at one point, threatened to kill everyone in the home and take their daughter if Pikyavit didn't make time to see him, court records say. Not taking the threat seriously, Pikyavit left the home and headed to work.

Honie headed to the house and began arguing with Benn.  Honie told police that Benn started the fight and was calling him names through a sliding glass door before he snapped, broke through the door and went inside. Benn had grabbed a butcher knife but was overpowered by Honie, who grabbed the knife and brought it to her throat, court records say. Honie says the two of them both tripped while the knife was at Benn’s throat and that she fell on the blade.

Police said Benn was found face down in the living room, with numerous “stabbing and cutting wounds” to her neck and genitals, according to court documents. Honie confessed to the murder, telling police that same night he had “stabbed and killed her with a knife,” USA TODAY reported.

All three grandchildren were found at the home with varying degrees of blood on their clothes and body.  There was also evidence that one of Benn’s granddaughters was sexually abused at some point, court documents say.  Honie was arrested, charged and convicted of aggravated murder.

Texas completes its third execution of 2024

As reported in this AP piece, a "Texas man who claimed an intellectual disability in a late attempt at a reprieve was executed Wednesday evening for the killing of a woman who was jogging near her Houston home more than 27 years ago."  Here is more:

Arthur Lee Burton, 54, received a lethal injection at the state penitentiary in Huntsville and was pronounced dead at 6:47 p.m. local time.  He was condemned for the July 1997 killing and attempted rape of Nancy Adleman, a 48-year-old mother of three....

Adleman had been brutally beaten and strangled with her own shoelace in a heavily wooded area off a jogging trail along a bayou, police said. According to authorities, Burton confessed to killing her, saying “she asked me why was I doing it and that I didn’t have to do it.” He recanted this confession at trial.

Hours before the scheduled execution time, the U.S. Supreme Court declined a defense request to intervene after lower courts had previously rejected Burton’s request for a stay.  Burton’s lawyers had argued that reports by two experts and the records showed Burton “exhibited low scores on tests of learning, reasoning, comprehending complex ideas, problem solving, and suggestibility, all of which are examples of significant limitations in intellectual functioning.”  They had argued the evidence was a strong indication of an intellectual disability that made him “categorically exempt from the death penalty.”

Prosecutors, however, argued that Burton had not previously raised claims of an intellectual disability and that he had waited until eight days before his scheduled execution to do so.  An expert for the Harris County District Attorney’s Office, which prosecuted Burton, said in an Aug. 1 report that he had not seen any evidence Burton suffered from a significant deficit in intellectual or mental capabilities....

Burton was convicted in 1998 but his death sentence was overturned by the Texas Court of Criminal Appeals in 2000. He received another death sentence at a new punishment trial in 2002....

Burton was the third inmate put to death this year in Texas, the nation’s busiest capital punishment state, and the 11th in the U.S.

Two notable new sentencing-related papers in the new issue of the Journal of Empirical Legal Studies

I received an email today from the Society for Empirical Legal Studies providing the contents of the newest isse of the Journal of Empirical Legal Studies.  This link to the September 2024 issue was also provided, and I was pleased to see therein two sentencing-related papers (which are open access as of this writing):

"The impact of legal representation in Israeli traffic courts: Addressing selection bias and generalizability problems" by Rabeea Assy & Tomer Carmel

Abstract: This study investigates the impact of legal representation on the process and outcomes of legal proceedings, focusing on Israeli traffic courts dealing with simple traffic offenses.  It finds that legal representation significantly increased defendants' prospects of obtaining plea bargains and of avoiding demerits points.  However, legally represented defendants were also exposed to higher fines compared to self-represented defendants.  Since points are typically the primary concern for defendants, we contend that legal representation improved case outcomes, overall.  Considering the simplicity of the process, the minimal legal expertise required, and the low stakes involved, the representation effect was unexpectedly robust.  This effect may potentially be even stronger in more complex cases and where the stakes are higher.  Unlike previous observational studies, this study reduces the risks associated with selection bias and produces findings that are more credible and potentially generalizable to other contexts.

"The influence of the race of defendant and the race of victim on capital charging and sentencing in California" by Catherine M. Grosso, Jeffrey Fagan & Michael Laurence

Abstract: The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced.  This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence.  We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002.  Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and all defendants convicted of killing at least one white victim are substantially more likely to be sentenced to death.  We further examined the role that race and ethnicity have in decision-making at various points in the criminal justice system.  We found that prosecutors were significantly more likely to seek death against defendants who kill white victims, and that juries were significantly more likely to sentence those defendants to death.  The magnitude of the race of the defendant and race of the victim effects is substantially higher than in prior studies in other states and in single-jurisdiction research.  The results show an entrenched pattern of racial disparities in charging and sentencing that privileges white victim cases, as well as patterns of racial disparities in who is charged and sentenced to death in California courts that are the natural result of California's capacious statutory definition of death eligibility, which permits virtually unlimited discretion for charging and sentencing decisions.  This pattern of racial preferences illustrates the social costs of California's failure to follow the Supreme Court's directive in Furman v Georgia to narrow the application of capital punishment over 50 years ago.

Former Solicitor General Ted Olson, husband of 9/11 victim, says plea deal with 9/11 defendant was "best possible outcome"

The New York Times has this notable new piece with quotes from a notable lawyer about the (now revoked) plea agreement that would have taken away the possibility of a death sentence for the accused mastermind of the 9/11 attacks and two accomplices.  Here are excerpts:

A former solicitor general of the United States whose wife was killed on Sept. 11, 2001, said he was relieved to hear that a plea agreement had been reached in the case, and puzzled when the secretary of defense upended the deal.

Last week, a senior Pentagon official who oversees the military commissions signed a plea agreement with the man accused of planning the attacks and two other defendants. Then, two days later, Defense Secretary Lloyd J. Austin III rescinded it, stirring uncertainty in the case at Guantánamo Bay....

“I don’t think I can opine on whether the secretary of defense had the authority to do what he did,” Theodore B. Olson, the former solicitor general, said in an interview on Tuesday with The New York Times, breaking his silence on the plea deal. “But it does strike me as very unusual that someone with authority to enter into these negotiations would make a deal with these defendants and the government would turn around and renege on the deal, to abrogate the deal.”

His wife, Barbara K. Olson, 45, a conservative legal analyst, was a passenger on American Airlines Flight 77 and on her way to Los Angeles for a television appearance when the plane was flown into the Pentagon in the Sept. 11 attacks.

At the time of the attack, Mr. Olson was serving as President George W. Bush’s solicitor general, the top lawyer responsible for Supreme Court cases for the administration. He said he was informed last Wednesday that prosecutors had reached a plea agreement the same way as other Sept. 11 family members on a Defense Department roster: in an email.

Mr. Olson called the resolution reached “the best possible outcome.” “There was never going to be an enforceable death penalty anyway,” he said. “It was not going to happen and this was going to go on forever and ever.”...

Mr. Olson emerged as an influential voice in favor of plea agreements in February, as negotiations were continuing behind the scenes in the case. He declared the military commissions at Guantánamo Bay a failure — “We tried to pursue justice expeditiously in a new, untested legal system” — and said any capital conviction that emerged from the court was doomed to years of appeals.

Deep divisions exist among relatives of the 2,976 people who were killed that day over how they think the case should be resolved. Some family members and their supporters say nothing short of the execution of Mr. Mohammed should resolve the case. Others argue the United States lost its moral authority to execute the men because they were tortured by the C.I.A....

Increasingly, a third group has emerged arguing that it would endorse the death penalty but, after 12 years in pretrial hearings, a resolution of the case should be a top priority through plea negotiations, which necessarily take death off the table.

Mr. Olson was very sympathetic to family members who “wanted to pursue this to the end of the earth as far as the death penalty is concerned,” he said. “But I thought that was not going to be possible. This had been going on for 20 years.”

“The best resolution, and I know people would disagree with me, and I respect other people’s opinions on this, especially the families, the best possible resolution for this was to bring it to a close: They admit what they did, they agree to cooperate and their sentence is life imprisonment. Period.”

Prior recent related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences
• US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants
• Rounding up a few major press pieces about revoked 9/11 plea deals

US Defense Secretary overrules GITMO overseer to revoke plea agreement with 9/11 defendants

As reported in this New York Times article, "Defense Secretary Lloyd J. Austin III on Friday overruled the overseer of the war court at Guantánamo Bay and revoked a plea agreement reached earlier this week with the accused mastermind of the Sept. 11, 2001, attacks and two alleged accomplices."  Here is more:

The Pentagon announced the decision with the release of a memorandum relieving the senior official at the Defense Department responsible for military commissions of her oversight of the capital case against Khalid Shaikh Mohammed and his alleged accomplices for the attacks that killed nearly 3,000 people in New York City, at the Pentagon and in a Pennsylvania field.

The overseer, retired Brig. Gen. Susan K. Escallier, signed a pretrial agreement on Wednesday with Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi that exchanged guilty pleas for sentences of at most life in prison.  In taking away the authority, Mr. Austin assumed direct oversight of the case and canceled the agreement, effectively reinstating it as a death-penalty case.  He left Ms. Escallier in the role of oversight of Guantánamo’s other cases.

Because of the stakes involved, the “responsibility for such a decision should rest with me,” Mr. Austin said in an order released Friday night by the Pentagon....

A senior Pentagon official said that the decision was the secretary’s alone, and that the White House had no involvement.  The official said Mr. Austin had never supported a plea deal and wanted the military commission trials to proceed.

Mr. Austin’s action was met with disbelief by lawyers at Guantánamo Bay who were preparing for a hearing, possibly as soon as Wednesday, for the judge in the case, Col. Matthew N. McCall, to question Mr. Mohammed about whether he understood and voluntarily agreed with the plea.

Prior related posts:

• Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty 
• Federal prosecutors finalizes plea deals with three 9/11 defendants for LWOP sentences

South Carolina Supreme Court finds all three of state's execution methods to be constitutional

As reported in this local article, a "majority on the S.C. Supreme Court has ruled that allowing death row inmates the choice of the electric chair or firing squad to carry out their sentences does not constitute cruel and unusual punishment."  Here is more about the ruling:

The decision, published July 31, comes several years after the state legislature introduced the two methods as an alternative to lethal injection, which was discontinued after the state Department of Corrections was no longer able to procure the lethal drugs necessary to carry out those sentences.

The law prompted an immediate legal challenge, with opponents of the death penalty arguing that both alternative methods were exceedingly painful and unusual in a country where executions have overall been declining. Today, just five states — Idaho, Mississippi, Oklahoma, South Carolina and Utah — deploy firing squads for executions, while the electric chair is currently used in Alabama, Arkansas, Florida, Kentucky, South Carolina and Tennessee.

A Richland County court ruled in 2022 that both electrocution and the firing squad violated the South Carolina Constitution's provisions against cruel and unusual punishment.

Writing for the majority on July 31, Justice John Cannon Few wrote that the two methods could not be considered cruel and unusual because, rather than representing an effort to inflict pain, the execution methods represented the S.C. General Assembly's "sincere effort" to make the death penalty less inhumane while enabling the state to carry out its laws.

The full ruling in Owens v. Stirling, Opinion No. 28222 (S.C. July 31, 2024) (available here), which includes some partial dissents on certain execution methods, runs nearly 100 pages.  Because there seems to now be only a few (if any) current US Supreme Court Justices eager to police state execution methods, these kinds of state supreme court rulings are nearly certain to be the last legal word on these matters for the foreseeable future.

Intriguing DPIC analysis of capital clemency grants over last 46 years

The Death Penalty Information Center (DPIC) recently posted here an interesting analysis of "all 82 grants of clemency to individual death-sentenced prisoners between 1977-2023, excluding mass clemency grants." Here is how D{IC summarizes its findings at the start of the analysis:

In a new analysis, the Death Penalty Information Center has found that executive officials most often cite disproportionate sentencing, possible innocence, and mitigation factors such as intellectual disability or mental illness as reasons to grant clemency in capital cases.  Ineffective defense lawyering and official misconduct are also common factors in clemency grants.  While present in fewer cases, support for clemency from the victim’s family or a decisionmaker in the original trial, such as a prosecutor or juror, appears to have a powerful impact.  Prisoners frequently offer evidence of rehabilitation and remorse at clemency hearings, but this evidence is cited less often by officials.

Here is another notable part of the DPIC's analysis:

We found that about half of cases (47.6%) had more than one stated or apparent reason for clemency, illustrating the compounding nature of legal violations and unfair practices in capital cases.  However, this did not split evenly by category: while two-thirds of possible innocence cases had possible innocence as the only apparent reason for clemency, only one rehabilitation/remorse case out of ten had that factor as the only reason.  In other words, executive officials appeared confident in citing possible innocence as the sole reason for a clemency grant, or in granting clemency when innocence was the predominant argument, but almost always relied on another justification when rehabilitation/remorse played a role in the case.

Alabama completes lethal injection execution a quarter century after murder of delivery driver

As detailed in this AP article, a "man convicted of fatally shooting a delivery driver during a robbery attempt in 1998 was executed Thursday evening in Alabama. Keith Edmund Gavin was pronounced dead at 6:32 p.m. CDT following a chemical injection at the William C. Holman Correctional Facility in southwest Alabama, authorities said." Here is more:

The 64-year-old inmate was convicted of capital murder in the shooting death of William Clayton Jr. in Cherokee County. Clayton, a 68-year-old courier service driver, had driven to an ATM in downtown Centre on the evening of March 6, 1998. He had just finished work and was getting money to take his wife to dinner, according to a court summary of trial testimony.

The execution began shortly after the U.S. Supreme Court turned down his request for a stay of execution, which Gavin filed himself in a handwritten document....

Prosecutors said Gavin shot Clayton during the attempted robbery, pushed him into the passenger seat of the van he was driving and drove off in the vehicle. A law enforcement officer testified that he began pursuing the van and the driver — a man he later identified as Gavin — shot at him before running away into the woods.

“After receiving a death sentence, Mr. Gavin appealed time after time for years to avoid justice, but failed at every attempt. Today, that justice was finally delivered for Mr. Clayton’s loved ones. I offer my prayers for Mr. Clayton’s family and friends who still mourn his loss all these years later,” Alabama Gov. Kay Ivey said in a statement.

Clayton, 68, was retired from a job at a railroad company and was a Korean War veteran, according to a 1998 obituary published by The Birmingham News. At the time of the killing, Gavin was on parole in Illinois after serving 17 years of a 34-year sentence for murder, according to court records. “There is no doubt about Gavin’s guilt or the seriousness of his crime,” the Alabama attorney general’s office had written in requesting an execution date for Gavin.

Alabama last week agreed in Gavin’s case to forgo a post-execution autopsy, which is typically performed on executed inmates in the state. Gavin, who is Muslim, said the procedure would violate his religious beliefs. Gavin had filed a lawsuit seeking to stop plans for an autopsy, and the state settled the complaint.

A jury convicted Gavin of capital murder and voted 10-2 to recommend a death sentence, which a judge imposed. Most states now require a jury to be in unanimous agreement to impose a death sentence....

It was the 10th execution in the U.S. this year and the third in Alabama, according to the Death Penalty Information Center. Texas, Georgia, Oklahoma and Missouri also have conducted executions this year. The Washington, D.C.-based nonprofit takes no position on capital punishment but has criticized the way states carry out executions.

US Supreme Court stays Texas execution minutes before scheduled lethal injection

As reported in this AP article, the "U.S. Supreme Court granted a stay of execution for a Texas man 20 minutes before he was to receive a lethal injection Tuesday evening.  The inmate has long maintained DNA testing would help prove he wasn’t responsible for the fatal stabbing of an 85-year-old woman during a home robbery decades ago."  Here is more:

The nation’s high court issued the indefinite stay shortly before inmate Ruben Gutierrez was to have been taken to the death chamber of a Huntsville prison.

Gutierrez was condemned for the 1998 killing of Escolastica Harrison at her home in Brownsville in Texas’ southern tip. Prosecutors said the killing of the mobile home park manager and retired teacher was part of an attempt to steal more than $600,000 she had hidden in her home because of her mistrust of banks.

Gutierrez has sought DNA testing that he claims would help prove he had no role in her death. His attorneys have said there’s no physical or forensic evidence connecting him to the killing. Two others also were charged in the case.

The high court’s brief order [available here], released about 5:40 p.m. CDT, said its stay of execution would remain in effect until the justices decide whether they should review his appeal request. If the court denies the request, the execution reprieve would automatically be lifted....

Gutierrez has had several previous execution dates in recent years that have been delayed, including over issues related to having a spiritual adviser in the death chamber. In June 2020, Gutierrez was about an hour away from execution when he got a stay from the Supreme Court.

In the most recent appeal, Gutierrez’s attorneys had asked the Supreme Court to intervene, arguing Texas has denied his right under state law to post-conviction DNA testing that would show he would not have been eligible for the death penalty. His attorneys argued that various items recovered from the crime scene — including nail scrapings from Harrison, a loose hair wrapped around one of her fingers and various blood samples from within her home — have never been tested....

Prosecutors have said the request for DNA testing is a delay tactic and that Gutierrez was convicted on various pieces of evidence, including a confession in which he admitted to planning the robbery and that he was inside her home when she was killed. Gutierrez was convicted under Texas’ law of parties, which says a person can be held liable for the actions of others if they assist or encourage the commission of a crime.

Interesting gendered jury history in the application of the death penalty

Via the Smithsonian Magazine, I came across this fascinating piece about juries and capital punishment history headlined "How All-Female ‘Juries of Matrons’ Shaped Legal History."  I recommend the piece in full, and here are some excerpts:

For more than 700 years, women in England could avoid the death penalty just by virtue of being pregnant.  A pregnant woman sentenced to death would receive a stay of execution until the baby was born. This tactic was called “pleading the belly” and often resulted in the death sentence being reduced to a less severe penalty once the pregnancy was over.

Of course, anyone can say they’re pregnant without actually being with child. So how did courts determine whether the claim was true? Until the early 20th century, it was standard practice to assemble all-female juries, called “juries of matrons,” to determine whether a woman was pregnant and could therefore avoid hanging for capital offenses....

All-female juries existed as early as 1140 in England and persisted until 1931. Their role in the courts was highly regarded. They were medical experts. If they found the woman was “quick with child” (pregnant), their findings were not disputed....

All-female juries also existed in colonial America, as well as in Australia and New Zealand. In fact, the first use of the English jury system in Australia was a jury of matrons....

If a convicted woman’s pregnancy resulted in a birth, a reprieve from the noose was fairly common. This raised the concern among men that women might falsely plead the belly to avoid punishment for a capital offense. They worried a jury of matrons, being “naturally” sympathetic to women, might grant the guilty a reprieve from death.

While there is scant evidence that this was the case, to address the men’s concern, the laws around pleading the belly stipulated that such a plea could only be made once. If a pregnant woman was granted a reprieve from death to have the baby, she could be executed for any future crime—even if pregnant at the time.

DPIC releases new report focused on "How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty"

Via email, I learned that this morning the Death Penalty Information Center release this big report titled "Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty."   This DPIC press release about the report provides this summary: "The Report uses new data and analysis on appellate rulings and grants of clemency, as well as individual stories and case studies from across the country, to reveal how electoral politcs distort the fairness and accuracy of capital punishment, and how decreasing public support for the death penalty is changing the picture." 

This DPIC report webpage provides some videos and other supplemental materials.  And the full 60+-page report begins with an "Executive Summary: Key Finding":

Elected supreme court justices in Georgia, North Carolina, and Ohio are twice as likely to affirm death penalty cases during an election year than in any other year.  This effect is statistically significant when controlling for the number of cases each year.

Changing public opinion means that zealous support for the death penalty is no longer a litmus test for elected officials in many death penalty jurisdictions.  Today’s elections feature viable candidates who criticize use of the death penalty and pledge reforms or even non-use, reflecting the significant decline in public support for the death penalty.

Elected governors were more likely to grant clemency in the past when they did not face voters in an upcoming election.  Concerns about voter “backlash” have eased today with declining public support and low numbers of new death sentences and executions, and have led to an increased number of prisoners benefiting from clemency grants, especially mass grants, in recent years.

Oklahoma executes man 40 years(!?) after he raped and killed his young stepdaughter

As reported in this AP piece, "Oklahoma executed a man Thursday who was convicted of kidnapping, raping and killing his 7-year-old former stepdaughter in 1984.  Richard Rojem, 66, received a three-drug lethal injection at the Oklahoma State Penitentiary in McAlester and was declared dead at 10:16 a.m., prison officials said."    Here is more:

Rojem, who had been in prison since 1985, was the longest-serving inmate on Oklahoma’s death row....

Rojem was previously convicted of raping two teenage girls in Michigan, and prosecutors said he was angry at Layla Cummings because she reported that Rojem sexually abused her, leading to his divorce from the girl’s mother and his return to prison for violating his parole.

Rojem’s attorneys argued at a clemency hearing this month that DNA evidence taken from the girl’s fingernails did not link him to the crime.... Rojem, who testified at the hearing via a video link from prison, said he wasn’t responsible for the girl’s death. The panel voted 5-0 not to recommend to the governor that Rojem’s life be spared....

Prosecutors said there was plenty of evidence to convict Rojem, including a fingerprint that was discovered outside the girl’s apartment on a cup from a bar Rojem left just before the girl was kidnapped. A condom wrapper found near the girl’s body also was linked to a used condom found in Rojem’s bedroom, prosecutors said.

A Washita County jury convicted Rojem in 1985 after just 45 minutes of deliberations. His previous death sentences were twice overturned by appellate courts because of trial errors. A Custer County jury ultimately handed him his third death sentence in 2007.

Oklahoma, which has executed more inmates per capita than any other state in the nation since the death penalty was reinstated in 1976, has now carried out 13 executions since resuming lethal injections in October 2021 following a nearly six-year hiatus resulting from problems with executions in 2014 and 2015.

With no more executions scheduled in this US for a couple more weeks, the total number of executions nationwide for the first half of 2024 will be nine.

Texas completes execution for murder committed 23 years ago

As reported in this AP article, a "Texas man who admitted he kidnapped, sexually assaulted and fatally shot an 18-year-old woman in 2001 was executed Wednesday evening. Ramiro Gonzales, 41, was pronounced dead at 6:50 p.m. CDT following a chemical injection at the state penitentiary in Huntsville for the January 2001 killing of Bridget Townsend." Here is more:

Gonzales was repeatedly apologetic to the victim’s relatives in his last statement from the execution chamber. Just before he spoke, a spiritual adviser sang a prayer, resting her left hand on his chest....

Gonzales kidnapped Townsend from a rural home in Bandera County, northwest of San Antonio.  He later took her to his family’s ranch in neighboring Medina County, where he sexually assaulted her before killing her.  Her body wasn’t found until October 2002, when Gonzales led authorities to her remains in southwest Texas after he had received two life sentences for kidnapping and raping another woman.

The U.S. Supreme Court declined a defense plea to intervene about 1 and 1/2 hours before the scheduled execution start time.  The high court rejected arguments by Gonzales’ lawyers that he had taken responsibility for what he did and that a prosecution expert witness now says he was wrong in testifying that Gonzales would be a future danger to society....

Gonzales’ execution was the second this year in Texas and the eighth in the U.S.  On Thursday, Oklahoma is scheduled to execute Richard Rojem for the 1984 abduction, rape and killing of a 7-year-old girl.

Recent active discussions regarding Ohio's dormant death penalty

I have long viewed Ohio as a fascinating death penalty state, though that view is surely influenced by the fact I teach and write about capital punishment here in the Buckeye State.  Especially for a state outside the deep south, Ohio has long had a active death system: Ohio juries have imposed a relatively large number of death sentences and Ohio was behind only a few states in the total number of executions for the first dozen of so years starting the 21st century.  

But lots of litigation over execution methods and a range of other factors have contrubuted to a significant reduction in recent years in the (a) the size of Ohio's death row, (b) the number of new death sentences, and (c) completed executions in Ohio.  Of particular note, there has not been an execution in Ohio since summer 2018, and it certainly seems that current Ohio Governor Mike DeWine is  disinclined to preside over any executions while he is in office (which will be through 2026).  But the dormant capital punishment reality has not precluded active capital punishment discussions, as highlights by these recent stories:

From DPIC, "Ohio Legislative Black Caucus Identifies Death Penalty as a Legislative Priority Due to Legacy of Racial Violence and Bias"

From Fox News, "Ohio sheriff fed up with crime stemming from border crisis calls for death penalty renewal"

From Ohio Capital Journal, "Backers believe nitrogen hypoxia can jumpstart Ohio’s stalled capital punishment system""

From Spectrum News, "Gov. DeWine delays 3 more executions"

From WCMH, "Move to abolish Ohio’s death penalty renewed"

From WKRC, "Ohio considers 2 new death penalty bills that would either end executions or restart them"

Missouri completes execution of double murderer who proclaimed his innocence

As detaile in this AP article, a "man convicted of killing his former lover and her husband in what prosecutors described as a fit of rage was executed Tuesday evening in Missouri."  Here is more:

David Hosier, 69, was pronounced dead at 6:11 p.m. following a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre. Hosier was convicted of the 2009 killings of Angela and Rodney Gilpin in the state capital of Jefferson City.

Hosier turned his head a couple of times and breathed hard twice as the drug was administered. All movement stopped within seconds, even as his spiritual adviser seated next to him, the Rev. Jeff Hood, continued to pray.

Investigators said Hosier had a romantic relationship with Angela Gilpin and was angry with her for breaking it off and reconciling with her husband.  Hosier maintained until the end that he was innocent and shouldn’t have been convicted on circumstantial evidence.

The way was cleared Monday when Gov. Mike Parson declined to grant clemency, citing Hosier’s “lack of remorse.” Parson, a Republican and former county sheriff, has overseen 10 executions since taking office in 2018. Hosier’s lawyers said no court appeals were pending in the hours before the scheduled execution....

In previous interviews with The Associated Press, Hosier acknowledged having an affair with Angela Gilpin that she ended before getting back with her husband.  In September 2009, the two were fatally shot near the doorway to their apartment....

Hosier was the seventh person executed in the U.S. this year and the second in Missouri.  Brian Dorsey was executed in April for killing his cousin and her husband in 2006.  Missouri is scheduled to execute another man, Marcellus Williams, on Sept. 24, even though Williams is still awaiting a hearing on his claim of innocence in the 1998 stabbing death of Lisha Gayle.

Noticing that nitrogen gas as an execution method is not (yet) proving so popular

This lengthy new CNN article, headlined "Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object," highlights that other states have not yet followed Alabama's path-breaking lead in a new execution method.  Here is how the article begins:

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.”

Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one.  Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

But months later — as the circumstances of Smith’s death continue to fuel debate about nitrogen hypoxia — it’s also increasingly unclear whether more states will, in earnest, follow Alabama in implementing the method, which involves replacing the air breathed by the condemned inmate with 100% nitrogen, depriving them of oxygen.  Oklahoma and Mississippi have also legalized nitrogen hypoxia, but Alabama, which plans to execute a second inmate with nitrogen gas this fall, is the sole state to have put someone to death using it.

Only one of the recently proposed state bills authorizing such a form of execution has been signed into law: Two were stuck before committees when their state legislatures adjourned this year, and a sponsor of the third acknowledged its future is uncertain.

Rounding up some capital punishment stories from the week that was

Amid a busy week with lots of travel, I have not had a chance to cover any number of notable sentencing stories making headlines at the start of June.  I am hopeful that this weekend will provide me with some time to do a broader round-up of a broad array of sentencing news and commentary.  For now, I will be content to provided abridged coverage of some capital punishment pieces catching my eye:

From the AP, "Execution date set for Missouri inmate, even as he awaits hearing on claim of actual innocence"

From CNN, "He spent months visiting death row inmates and witnessed three executions. Here’s what he’s learned"

From HuffPost, "‘Rebel Nun’ Documentary Aims To Reinvigorate Push To Abolish Death Penalty"

From the New York Times, "A Death Row Prisoner Tells of Living Through a Botched Execution"

From the Phoenix New Times, "Rachel Mitchell: I’ll execute death row prisoner if Kris Mayes won’t"

From WION, "‘Doomsday’ triple-murder case: Chad Daybell sentenced to death for murder of wife and girlfriend’s 2 children"

Alabama executes by lethal injection double murderer 20 years after his crime

As reported in this AP piece, an "Alabama man received a lethal injection Thursday for the killing of an elderly couple in 2004, the first inmate put to death by the state since it became the first in the nation to execute an inmate using nitrogen gas months ago." Here is more:

Jamie Ray Mills, 50, was pronounced dead at 6:26 p.m. after a three-drug injection at the William C. Holman Correctional Faciilty in southwest Alabama, authorities said.  Lethal injection remains Alabama’s default method of execution unless an inmate requests nitrogen gas or the electric chair to carry out the death sentence.

Mills was convicted of capital murder at trial in the killings of Floyd Hill, 87, and his wife Vera, 72. Prosecutors said the victims were attacked with a hammer, machete and a tire tool at their home in a small community about 80 miles northwest of Birmingham.

Hours earlier, the U.S. Supreme Court declined without comment to block Thursday’s execution.  Attorneys for Mills, who maintained his innocence at his 2007 trial, had argued that newly obtained evidence showed the prosecution lied about having a plea agreement with Mills’ wife to spare her from seeking the death penalty against her if she testified against her husband. They also argued Alabama has a history of problematic executions.

By 6-3 vote, SCOTUS rejects Ninth Circuit reversal of Arizona death sentence in Thornell v. Jones

In its one criminal decision among three new opinions handed down by the Supreme Court this morning, the Justices by a 6-3 vote reversed a Ninth Circuit ruling in the capital case of in Thornell v. Jones, No. 22-982 (S. Ct. May 30, 2024) (available here).  Justice Alito authored the opinion for the Court, which starts and ends this way:

In this case, we review a decision of the Ninth Circuit ordering the resentencing of a defendant who, in order to steal a gun collection, committed three gruesome killings, including the cold-blooded murder of a 7-year-old girl.  The Ninth Circuit held that the defendant’s Sixth Amendment right to the effective assistance of counsel was violated during the sentencing phase of his capital trial.  In reaching this conclusion, the Ninth Circuit substantially departed from the well-established standard articulated by this Court in Strickland v. Washington, 466 U. S. 668 (1984).  Among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below....

When a capital defendant claims that he was prejudiced at sentencing because counsel failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence would have avoided a death sentence.  This analysis requires an evaluation of the strength of all the evidence and a comparison of the weight of aggravating and mitigating factors.  The Ninth Circuit did not heed that instruction; rather, it downplayed the serious aggravating factors present here and overstated the strength of mitigating evidence that differed very little from the evidence presented at sentencing. Had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the District Court denying habeas relief.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Interestingly, Justuce Sotomayor's dissenting opinion (which was joined by Justice Kagan), agrees with the majority that the Ninth Circuit erred in its ineffective assistance prejudice inquiry, but she dissent because she "would vacate the judgment below and remand for the Ninth Circuit to consider the full record in the first instance."

In contrast, Justice Jackson dissents on the merits, and here opinion starts this way:

In its search for legal error in this capital habeas case, the Court makes many mistakes of its own, including misreading the Ninth Circuit’s opinion. I write separately to emphasize a particular misstep: the Court’s conclusion that “the Ninth Circuit all but ignored the strong aggravating circumstances in this case.” Ante, at 1. In my view, the Ninth Circuit’s analysis satisfied its obligations under Strickland v. Washington, 466 U.S. 668 (1984).

Amnesty International reporting that in 2023 executions globally "soar to highest number in almost a decade"

The anti-death penalty group Amnesty International reports here on the "DEATH PENALTY 2023: Death sentences and Executions." Here is part of the start of the report online:

Executions soared to their highest number in almost a decade in 2023 with a sharp rise across the Middle East, Amnesty International said today as it released its annual report on the global use of the death penalty.

A total of 1,153 executions took place in 2023, which does not include the thousands believed to have been carried out in China, marking an increase of more than 30% from 2022. It was the highest figure recorded by Amnesty International since 2015, when 1,634 people were known to have been executed. Despite this increase, the number of countries that carried out executions reached the lowest figure on record with Amnesty International.

“The huge spike in recorded executions was primarily down to Iran. The Iranian authorities showed complete disregard for human life and ramped up executions for drug-related offences, further highlighting the discriminatory impact of the death penalty on Iran’s most marginalized and impoverished communities,” said Agnès Callamard, Amnesty International’s Secretary General.

“Despite the setbacks that we have seen this year, particularly in the Middle East, countries that are still carrying out executions are increasingly isolated. Our campaigning against this abhorrent punishment works. We will continue until we have put an end to the death penalty.”

The five countries with the highest number of executions in 2023 were China, Iran, Saudi Arabia, Somalia and the USA. Iran alone accounted for 74% of all recorded executions while Saudi Arabia accounted for 15%. Somalia and the USA carried out an increased number of executions in 2023.

There was a 20% increase in the number of death sentences handed out globally in 2023, taking the total to 2,428.

"The Sense of an Ending"

The title of this post is the title of this new essay authored by Susan Bandes available via SSRN. Here is its abstract:

One of the delights of shows like HBO's Succession is the virtual communal watch party they create, replete with competing interpretations and passionate predictions about plot development.  These conversations reveal some enduring truths about the power of narrative expectations, one of which is the tremendous importance we place on the delivery of a satisfying ending.  As the influential literary scholar Frank Kermode argued, “we cannot be denied an end, but it must be the right kind of ending.”  One of the fascinating aspects of Succession was the uncertainty about what kind of ending would be satisfying.  This uncertainty seems closely tied to the difficulty in pinning down the genre to which Succession belonged.

This Essay will first examine the notion of a satisfying ending as it applies to Succession.  It will argue that although Succession’s ending was, in some ways, letter-perfect, it was not — and could not be — emotionally satisfying. The emotionally impoverished ending was fitting, but dispiriting, and probably unavoidable given the particular generic traditions upon which Succession drew.  The Essay will then pose the question: What lessons can the notion of narrative closure — the need for a satisfying ending — convey about legal proceedings? We have grown accustomed to thinking about law as storytelling, but what insights can narrative theory impart about how law stories ought to end? In legal terms, to determine what constitutes a legally satisfying end point, we first must determine what the proceeding is meant to accomplish.  Legal finality may not track literary closure or psychological “closure;” and it is important to distinguish the dictates of the legal system from the impulses that drive finality and closure in other contexts.  I will illustrate this point with examples from death penalty jurisprudence, in which the question of an ending is unavoidable and takes several forms: finality of judgment, the notion of “closure” for bereaved family members, and the loss of life.

Tennessee now second state to allow death penalty for child rape since SCOTUS prohibition

I noted last month in this post that the Tennessee legislature has passed a bill authorizing the death penalty for those convicted of rape of a child.  This new AP piece reports that this bill is now law:

Tennessee Gov. Bill Lee has approved legislation allowing the death penalty in child rape convictions, a change the Republican-controlled Statehouse championed amid concerns that the U.S. Supreme Court has banned capital punishment in such cases. Lee, a Republican, quietly signed off on the legislation last week without issuing a statement.

The new Tennessee law, which goes into effect July 1, authorizes the state to pursue capital punishment when an adult is convicted of aggravated rape of a child.  Those convicted could be sentenced to death, imprisonment for life without possibility of parole, or imprisonment for life.

Florida’s Gov. Ron DeSantis enacted a similar bill nearly a year ago....  Meanwhile, Idaho’s GOP-controlled House approved similar legislation earlier this year, but the proposal eventually stalled in the similarly Republican-dominated Senate.

While many supporters of Tennessee’s version have conceded that even though the Volunteer State previously allowed convicted child rapists to face the death penalty, the U.S. Supreme Court ultimately nullified that law with its 2008 decision deeming it unconstitutional to use capital punishment in child sexual battery cases.

However, they hope the conservative-controlled Supreme Court will reverse that ruling — pointing to the decades long effort that it took to overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide but was eventually overruled in 2022.  “Maybe the atmosphere is different on the Supreme Court,” said Republican Sen. Janice Bowling last month while debating in favor of the law. “We’re simply challenging a ruling.”

Lee told reporters Tuesday that he didn’t sign the bill hoping it would be “tested” in court.  Instead, he said crimes against children are “some of the most heinous that there are.”...

Currently, all executions in Tennessee are on hold as state officials review changes to its lethal injection process.

Prior related posts:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 
• First capital child rape charge under new Florida law results in LWOP plea and sentence 
• Tennessee poised to become second state to authorize the death penalty for child rape since SCOTUS prohibition

New Death Penalty Information Center report presents racialized view of Ohio's capital punishment history

The Death Penalty Information Center (DPIC) today published this new report on Ohio capital punishment history titled "Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty." In this press release about the report, DPIC asserts that it "does not take a position on the death penalty itself," but all of its work clearly draws from an anti-capital punishment perspective.  This report is quite critical of Ohio's capital punishment history and current state as reflected in this description of the report from portions of the press release:

As Ohio legislators debate expanding or repealing the death penalty, the Death Penalty Information Center (DPIC) today released a report that documents how racial bias and violence affected the past use of the death penalty in Ohio and how that history continues to influence the current administration of capital punishment in the state.  None of the reforms recommended by a bipartisan task force 10 years ago to reduce racial disparities in capital cases have been adopted.

The report, “Broken Promises: How A History of Racial Violence and Bias Shaped Ohio’s Death Penalty” and “Five Facts You Should Know About Ohio’s Death Penalty” are available at this link....

As the report documents, racial discrimination is the throughline that runs from the state’s founding to its application of capital punishment today.  For example, from the early 19th century, Ohio’s Black Laws imposed legal restrictions on the rights and status of Black people in the state, including barring Black people from jury service.  In 1807, Ohio adopted a “Negro Evidence Law” which prohibited Black people from testifying against white people, establishing a legal double standard.  In the 19th and early 20th centuries, lynch mobs tortured and killed Black men after accusing them of raping white women without evidence.  Even when photos were taken in broad daylight of lynch mob participants, they rarely faced legal consequences for these extrajudicial murders.

As the report reveals, race, especially the race of the victim, continues to play an outsized role in Ohio’s death penalty system.  For example, homicides involving white female victims are six times more likely to result in execution compared to those involving Black male victims, despite the majority of murder victims in the state being Black. Similarly, a study of aggravated murder charges in Hamilton County shows that prosecutors are four and a half times more likely to seek the death penalty if there is at least one white victim, compared to similar cases without white victims....

“Broken Promises” builds upon DPIC’s 2020 report, “Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty.” It is the fourth in a series of reports detailing how individual state histories of racial injustice affect the current use of capital punishment. In 2023, DPIC released “Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty” and “Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today.” In 2022, DPIC released “Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.

Spotlighting how a change in federal Administrations could lead to a big change in federal capital punishment administration

Joe Biden campaigned on a pledge to work toward abolishing the death penalty, and the federal death penalty has been mostly (though not entirely) dormant during his time in office.  No federal executions and very few new federal capital cases have moved forward during his time in office.  (And while a President has almost no means to impact or even influence state capital practices, it is also notable that there have been relatively few state executions and state death sentences since 2021 as well.)  Though I doubt President Biden plans to make much of his capital punishment record in his re-election bid — especially because many in his base likley wish he would do more to advance abolition — I sense his approach to the death penalty would be largely the same if he were to get a second term in the Oval Office.

In contrast, and as highlighted by this new HuffPost piece, federal death penalty administration is surely likely to shift gears dramatically if we have another Trump Adminstration.  This piece's full headline highlights its coverage: "There's A GOP Plan For An Execution Spree If Trump Wins The White House: Buried on page 554 of the plan is a directive to execute every remaining person on federal death row — and dramatically expand the use of the death penalty."  Here are excerpts:

Trump, the GOP’s presumptive 2024 presidential nominee, has openly fantasized about executing drug dealers and human traffickers.  He reportedly suggested that officials who leak information to the press should be executed, too.  And behind the scenes, there’s a team of pro-Trump conservatives who are pushing for a second Trump term that involves even more state-sponsored killing than the first.

Last year, a coalition effort by conservative groups known as Project 2025 released an 887-page document that lays out policy goals and recommendations for each part of the federal government.  Buried on page 554 is a directive to execute every remaining federal death row prisoner — and to persuade the Supreme Court to expand the types of crimes that can be punished with death sentences.

Gene Hamilton, the author of the transition playbook’s Department of Justice chapter, wrote that the next conservative administration should “do everything possible to obtain finality” for every prisoner on federal death row, which currently includes 40 people.  “It should also pursue the death penalty for applicable crimes — particularly heinous crimes involving violence and sexual abuse of children — until Congress says otherwise through legislation,” he wrote.  In a footnote, Hamilton said that this could require the Supreme Court to overrule a previous case, “but the [Justice] department should place a priority on doing so.”

I have heard of Project 2025, but I am not at all sure how truly impactful its desired blueprints are regarding what we might expect from an actual Trump Administration.  After all, as noted in this post from July 2020, the "Biden-Sanders Unity Task Force" produced a big report calling for, among other items on a criminal-justice reform wish list, the future Biden Administration to: "abolish the death penalty at the federal level, and incentivize states to follow the federal government’s example."  Not only has that not happened, no formal steps have been taken by President Biden to make it happen.

Perhaps the most interesting part of this story relates to the possiblity that a future Trump Administration might seek to actively pursue or support the application of the death penalty in child rape cases.  Current Supreme Court Eighth Amendment doctrine, of course, holds that capital punishment for child rape is unconstitutional. See Kennedy v. Louisiana, 554 U.S. 407 (2008).  But Florida enacted a new capital child rape statute last year, and Tennessee legislators recently sent a similar bill to its Governor.   Given that three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority is on still on this Court, there is strong reason to suspect the current Supreme Court might well be prepared to reconder Kennedy at some point.  That possibility might become even that much more likely if the US Justice Department was actively advocating for Kennedy's reversal.

Split Oklahoma Court of Criminal Appeals grants state's request to add an extra month between scheduled executions

As reported in this local article, the "Oklahoma Court of Criminal Appeals has decided future executions will be set 90 days apart 'unless circumstances dictate modification'."  Here is more on an interesting ruling in response to an interesting request:

Oklahoma Attorney General Gentner Drummond had asked for more time to reduce the stress on the volunteer execution teams. He was joined in the request by Steven Harpe, the executive director of the Department of Corrections. "The present pace of executions, every 60 days, is too onerous and not sustainable," Harpe said.

The decision on 90-day intervals was announced Tuesday. It was not unanimous. Two of the five judges called for executions to remain at 60 days apart.  "Individuals in many professions face demanding and arduous duties as part of their job requirements," Judge Gary Lumpkin wrote in opposing more time. "Personnel in our military continuously face life and death situations but they step up each day and do their duty."

All five judges agreed, though, that executions will be set one at a time from now on instead of in phases. The state has a backlog because of a hiatus on lethal injections that lasted almost seven years. A dozen have been carried out since they resumed in 2021 at the Oklahoma State Penitentiary in McAlester. The latest was April 4.

Drummond and Harpe in January asked the court to go to 90-day intervals once the second phase of executions is completed in June.... Drummond last year called for a change to 60-day intervals to reduce the stress on staff and give more time for training. The Court of Criminal Appeals agreed, resetting seven executions.

The court acknowledged Tuesday that scheduling executions in phases has not worked.  Judges told the attorney general to timely notify them each time an inmate is executed, gets a stay or has a stay lifted so the next execution can be set.

Lumpkin on Tuesday pointed out the Department of Corrections carried out 18 executions in 2001, seven in 2002 and 14 in 2003. "It is time to realize the victims and their families must be remembered and the law established by the Oklahoma Legislature followed," he wrote. "As shown in 2001-2003 by the actions of DOC employees, they can step up to meet the challenges placed before them when proper leadership is provided."

UPDATE: A helpful reader helped me find my way to this report on the ruling that includes the full order from the Oklahoma Court of Criminal Appeals in In re The Setting of Execution Dates.

"Gender Matters: Women on Death Row in the United States"

The title of this post is the title of this new article now available via SSRN and authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson.  Here is its abstract:

This article presents a comprehensive study of 48 persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected District Attorneys, defense attorneys, and juror forepersons — and explain why gender matters in determining who lives and who dies.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.

Notable review of 30 murders still on death row in Alabama after judges overrode jury life recommendations

AL.com has this interesting and detailed review of every death row defendant in Alabama who was sent to the row by a judge after a jury did not recommend a death sentence.   The article is headlined, "These 30 Alabama Death Row inmates are waiting to die because judges overruled juries," and here is how it sets up its discussion of these cases:

Despite a 2017 Alabama law banning judges from sentencing defendants to death when juries recommend life in prison, 30 inmates remain sentenced under those circumstances on death row.

A bill that would require courts to resentence people sentenced to death by judicial override was recently killed by a legislative committee, leaving those inmates to face death sentences juries did not want.

Why did the judges in these cases decide to overrule the juries? A look at the inmates’ appeals offers a glimpse into the judges’ thought processes.

In one case, the judge theorized the jury was “probably emotionally and mentally worn out” after the defendant’s family asked them to spare their relative’s life.

In others, judges said jury “outbursts” showed they were incapable of rendering a death sentence recommendation. Others said the heinousness of the crimes was enough to warrant execution.

"The Puzzling Persistence of Capital Punishment"

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

For over 250 years, Western intellectuals have been pronouncing capital punishment a barbarity doomed to be swept into the dustbin of history.  The death penalty, we have repeatedly been told, is an “anachronism” inconsistent with the spirit of the modern age — a relic that would, in a generation or two, fade away.  What is distinctive about recent decades is the confidence and monolithic quality of elite opinion, at least in the West.  There is a swelling confidence that the death penalty is, at last, at the cusp of extinction.

This Article questions the descriptive claim that the death penalty is dying, either in the United States or in the world at large.  Simply counting the number of nations that have technically abolished the death penalty fails to capture the apparent permanence of capital punishment.  Many non-Western civilizations retain the death penalty with a vigor that surprises and disappoints Western intellectuals.  And even within the United States, given the prohibitive cost of imposing a death sentence, it is remarkable how determined so many Americans are to continue to execute the worst of criminals.

As argued in this Article, the simplest answer to the puzzle of capital punishment’s persistence is that the retributive impulse is, as Justice Potter Stewart observed, “part of the nature of man.”  The answer is so obvious that what is puzzling is not the persistence of the death penalty but that some people regard this persistence as puzzling.  The dismay of modern Western intellectuals at the recurring failure of abolitionist efforts points to defining features of that intelligentsia.  Since the Enlightenment, many intellectuals have regarded nature as a weak and even nonexistent constraint on human progress.  It is from this perspective that the persistence of capital punishment, so seemingly rooted in human nature, comes to sight as such a puzzling disappointment. 

Tennessee poised to become second state to authorize the death penalty for child rape since SCOTUS prohibition

As reported in this local piece from Tennessee, a "controversial bill that would allow the state to seek the death penalty for those convicted of rape of a child passed the House of Representatives Monday, clearing the final legislative hurdle before becoming law in Tennessee."  Here are the basics:

HB1663, by House Majority Leader William Lamberth (R-Portland), would allow for those convicted of rape or especially aggravated rape of a child in Tennessee to be sentenced to death.

The move received considerable pushback from Democrats, who argued the General Assembly was passing a blatantly unconstitutional law.  The bill was also not favored by Sen. Kerry Roberts, who said while he disagreed with the Supreme Court decisions that made and affirmed that the death penalty was considered cruel and unusual punishment, passing the law was not going to help overturn Kennedy v. Louisiana, as some of his colleagues might hope it would.

Despite attempts to amend the bill by Roberts, the Senate adopted the bill 24-5, with Sen. Todd Gardenhire (R-Chattanooga) joining Democrats opposed. The last stop for the bill in the legislative branch was the House Monday, April 22....  Ultimately, the bill passed on party lines, 77-19-1, with Clarksville Democrat Ronnie Glynn Present Not Voting.

The bill now heads to Gov. Bill Lee‘s desk for his signature. News 2 has reached out to the governor’s office for comment.

I expect that Gov Lee would be likely to sign this legislation (especially since it would seem any veto could be overridden). When this bill becomes law, Tennessee will join Florida in having a modern capital child rape statute despite the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008), that the Eighth Amendment bars states from imposing the death penalty for the rape of a child.

Florida's capital child rape statute has yet to produce a death sentence that might become a new test case for the Kennedy ruling.  I predicted in this prior post that it might be many, many years before such a case gets to the Supreme Court.  More states having capital child rape laws on the books surely make a test case that much more likely.

Prior related posts:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy? 
• Possible Florida test case for new capital child rape statute now in the works 
• First capital child rape charge under new Florida law results in LWOP plea and sentence 

Missouri completes execution of double murderer over notable clemency requests

As reported in this AP piece, a "Missouri man was executed Tuesday for killing his cousin and her husband nearly two decades ago in an attack that left the couple’s 4-year-old daughter home alone and unharmed."  Here is more:

Brian Dorsey, 52, was pronounced dead at 6:11 p.m. after a single-dose injection of the sedative pentobarbital at the state prison in Bonne Terre, Karen Pojmann, communications director for the Missouri Department of Corrections, said in an email.  It was the first execution in Missouri this year after four in 2023, and it came hours after the U.S. Supreme Court rejected the inmate’s final appeals....

Dorsey, in a final statement, expressed remorse and sorrow for the killings. “Words cannot hold the just weight of my guilt and shame,” Dorsey said in the written statement.

Dorsey, 52, formerly of Jefferson City, was convicted of killing Sarah and Ben Bonnie on Dec. 23, 2006, at their home near New Bloomfield.  Prosecutors said that earlier that day, Dorsey had called Sarah Bonnie seeking to borrow money to pay two drug dealers who were at his apartment....

Hours before the execution, the Supreme Court turned aside both of Dorsey’s appeals without comment.  His lawyers had urged the high court to step in, saying he had shown good behavior in prison and had been rehabilitated.  They also argued a $12,000 flat fee paid to his two public defenders gave them incentive to hurry through the case.  On their recommendation, Dorsey pleaded guilty despite having no agreement with prosecutors to spare him from the death penalty.

On Monday, Republican Gov. Mike Parson denied a clemency request that included signatures from 72 current and former state corrections officers who urged the governor to commute Dorsey’s sentence to life in prison without parole.  They cited Dorsey’s virtually spotless record of good behavior behind bars.  Parson, a Republican, is a former county sheriff.  He has never granted clemency since taking office in 2018.

Parson, in a statement, said Dorsey “punished his loving family for helping him in a time of need.  His cousins invited him into their home, where he was surrounded by family and friends, then gave him a place to stay.  Dorsey repaid them with cruelty, inhumane violence, and murder.”

Missouri has scheduled its next execution June 11 for inmate David Hosier for his conviction in the 2009 killing of a Jefferson City woman.  Five people have been executed in five different states this year — Alabama, Texas, Georgia, Oklahoma and Missouri.

Oklahoma completes execution for double murder committed 20+ years ago

As reported in this AP piece, Michael Dewayne Smith, who was "convicted of shooting and killing two people in Oklahoma City more than two decades ago, was executed Thursday morning." Here is a bit more:

After the first of three lethal drugs, midazolam, was administered, Smith, 41, appeared to shake briefly and attempt to lift his head from the gurney before relaxing. He then took several short, audible breaths that sounded like snores or gasps. Oklahoma DOC Director Steven Harpe said after the execution that Smith “appeared to have some form of sleep apnea.”

A masked doctor entered the execution chamber at 10:14 a.m. and shook Smith several times before declaring him unconscious. Smith appeared to stop breathing about a minute later. The doctor reentered the execution chamber at 10:19 a.m. and checked for a pulse before Harpe announced the time of death.

Smith was sentenced to die in the separate shooting deaths of Janet Moore, 41, and Sharath Pulluru, 22, in February 2002.

He is the first person executed in Oklahoma this year and the 12th put to death since the state resumed executions in 2021 following a nearly seven-year hiatus resulting from problems with executions in 2014 and 2015.

Intriguing discussion of judges' experiences with death penalty case

Law360 has this notable new piece about judicial experiences with the death penalty.  The lengthy piece defies ready summary, but here are some snippets:

Law360 recently spoke to multiple judges with experience in capital practice about what it means to handle death penalty cases, which are legally complex and emotionally taxing.  Whatever their beliefs on the morality, effectiveness and fairness of the death penalty, the judges said they must put those feelings aside while they're on the bench.

"I have to follow the law and I have to do my job," said Gary B. Randall, a longtime state judge in Nebraska who sentenced three defendants to death throughout his career before retiring in 2020.

But many judges say they aren't always prepared to handle cases involving capital punishment, and most of them learned to do it with little to no instruction.  "You have to learn on the job. You take the cases as they come and you do your best," Michael A. Wolff, the dean emeritus of Saint Louis University School of Law and a former chief justice of the Supreme Court of Missouri, told Law360.

Judges have the option to attend the National Judicial College, a nonprofit based at the University of Nevada, Reno that provides training for judges. In January, the college received a $1 million grant from the U.S. Department of Justice's Bureau of Justice Assistance to prepare state judges to handle death penalty cases.  According to a statement by the college, the grant will fund two years' worth of programming that includes quarterly webinars, a six-week online course, a bench practice book, a clearinghouse of model orders, and eight podcasts.

Each phase of a death penalty trial presents judges with unique challenges, from impaneling a jury to providing instructions before a verdict.  Judges must weed out jurors who don't want to be involved with a case involving a possible death sentence.  They must show extreme attention to detail when considering aggravating or mitigating factors, including severe mental illness or disability, that could make the difference in whether a defendant lands on death row.  And because capital cases are almost always high-profile, judges must also learn to manage the media.

In addition to the technical and legal issues, presiding over death penalty cases carries a heavy mental and emotional burden that judges can struggle to deal with.  It's something that the National Judicial College is also looking to address as part of its new programming lineup, which will offer on-site courses in four locations around the country on a broad range of topics, including "judicial wellness and vicarious trauma," according to a statement announcing the grant.

Georgia completes its first execution in four years

As reported in this local article, "Georgia has executed its first prisoner in four years after the Supreme Court declined to intervene in the execution." Here is more:

Willie James Pye, 59, was convicted of murder and other crimes in the November 1993 killing of Alicia Lynn Yarbrough. He is scheduled to be put to death Wednesday. The planned lethal injection using the sedative pentobarbital happened at 11:03 p.m. at the state prison in Jackson.

In their request for clemency, Pye’s lawyers called the 1996 trial “a shocking relic of the past” and said the local public defender system had severe shortcomings in the 1990s.... “Had defense counsel not abdicated his role, the jurors would have learned that Mr. Pye is intellectually disabled and has an IQ of 68,” they said, citing the findings of the state’s expert.

Defendants who are intellectually disabled are ineligible for execution. Experts said that Pye meets the criteria, but that the burden of proof in Georgia was too high to reach, his lawyers argued....

But the Georgia Parole Board rejected those arguments after a closed-door meeting on Tuesday, and denied Pye’s bid for clemency. Pye’s lawyers filed late appeals to the U.S. Supreme Court urging it to intervene, but the justices declined.

"Repairing the 'Sea of Disorganized' Procedures for Determining Competency for Execution"

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

When the government executes a person with severe mental illness, it is questionable whether the execution even serves any true retributive purpose due to the prisoner’s inability to rationally understand the reasoning for the execution.  Since the U.S. Supreme Court’s landmark decision in Ford v. Wainwright, scholars and courts have debated the appropriate process for determining a prisoner’s competency for execution — and what that even means.

Despite decades of discourse, recent cases — most significantly recent executions of persons who suffered from severe mental illness — illustrate that the processes used across the country for determining competency for execution are insufficient.  This article presents a multifaceted solution to how states can improve their processes for reviewing whether prisoners are competent for execution in an effort to ensure each execution comports with the requirements of the Eighth Amendment, as established in Ford and its progeny.  Practically, the article proposes recommendations for the process courts use to determine whether a prisoner is incompetent for execution — including imposing a mandatory stay to allow adequate time for the determination and updating the standard of incompetency.  Also, for the first time, this article contemplates regulating certain aspects of experts’ evaluations of prisoners who claim incompetency for execution — including requiring certain diagnostic imaging and standardizing the format of expert evaluations.

A week of notable capital punishment stories

A number of capital punishment press pieces caught my eye last week, and here is a quick round up to start a new week:

From the AP, "Oklahoma panel denies clemency for death row inmate, paves way for lethal injection"

From Corrections 1, "La. expands methods of execution"

From Fox News, "Idaho serial killer survives lethal injection attempt, prompting renewed push for firing squad"

From The Guardian, "Three top nitrogen gas manufacturers in US bar products from use in executions"

From the Lexington Herald Leader, "GOP Kentucky attorney general wants to end state’s death penalty ban"

From Newswer, "Case Highlights a Quirk in Georgia's Death Penalty: The state requires intellectual disability be proved 'beyond a reasonable doubt"

From NPR, "Who performs a lethal injection in the U.S.? In some states, they're volunteers"

From Public News Service, "Racial Justice Act case could affect NC death row inmates"

From the San Francisco Chronicle, "Would Newsom’s successor reinstate California’s death penalty? Here’s what candidates said"

From the Tampa Bay Times, "On Florida’s death row, inmates often outlive the judges who sentence them"

UPDATE:  And since this post, I happened to see two more major media stories on the death penalty that seemed worth flagging:

From ABC News/AP, "Georgia readies to resume executions after a 4-year pause brought by COVID and a legal agreement"

From the New York Times, "In Death Penalty Cases, a Texas Court Tests the Supreme Court’s Patience"

Louisiana legislature enacts slate of tough-on-crime bills urged by its new Gov

A helpful reader made sure I saw this local news accounting of the significant crime legislation that formally passed today.  Here are just some of the details:

The special crime-focused legislative session wrapped up early on Thursday after lawmakers passed all of the controversial tough-on-crime bills touted by Gov. Jeff Landry.

On the final day of the session, legislators approved HB6, which expands the methods of how Louisiana can execute death row inmates.  The bill added nitrogen hypoxia and the electric chair into the toolkit.  This is part of the effort of the new governor to resume executions. Louisiana has only put one person to death over the last two decades.  There are currently 57 people on the state’s death row....

Also given final passage are two bills that would require inmates to serve more of their sentences in prison. HB9 does away with parole for future offenders starting in August of this year.  HB10 also significantly reduces the amount of time that can be shaved off based on good behavior to just 15%.  HB11 extends how long someone has to be on parole, for those who still qualify, and adds further consequences for those who violate their parole.

Lawmakers also passed SB3, which will designate adults as 17 years or older in the criminal justice system.  This means 17-year-olds will be tried as adults when they commit a crime and will be housed in adult facilities....

In response to recent violent carjacking stories coming out of New Orleans, lawmakers passed HB7 to increase the penalty for carjacking to nearly double what it is currently.

There were many questions about how much all this legislation will cost.  The Legislative Fiscal Office estimated together it will cost millions of dollars a year.  However, legislators questioned their calculation methods and claimed it wouldn’t cost that much.

The bills passed now head to the governor’s next for signature and he is anticipated to sign them over the next week.

Despite condemn's clams of innocence, Texas carries out its first execution of 2024

As reported here by CNN, "state of Texas has executed Ivan Cantu, who was convicted and sentenced to death for murdering his cousin and his cousin’s fiancée, though he insisted he was innocent." Here is a bit more:

Cantu, 50, was put to death Wednesday by lethal injection, with the time of death recorded as 6:47 p.m., the Texas Department of Criminal Justice said in a news release.  He was executed more than 20 years after his conviction....

For weeks, Cantu and his advocates — among them three jurors in the case — have called for his execution to be halted so he could argue he was deprived of a fair trial and framed by those who, in his telling, are truly responsible for the 2000 killings of his cousin James Mosqueda and his cousin’s fiancée, Amy Kitchen, a nursing student.

Idaho officials botch execution of serial killer by failing in repeated attempts to establish an IV for lethal injection

As reported in this AP article, "Idaho on Wednesday delayed the execution of serial killer Thomas Eugene Creech, one of the longest-serving death row inmates in the U.S., after a failed attempt at lethal injection." Here is more:

Creech, 73, was imprisoned in 1974 and has been convicted of five murders in three states and suspected of several more.  He was already serving life in prison when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which Creech was to be executed more than four decades later.

Creech was wheeled into the room at the Idaho Maximum Security Institution on a gurney at 10 a.m.  The warden announced he was halting the execution at 10:58 a.m.  Six Idaho officials, including Attorney General Raul Labrador, and four news media representatives, including an Associated Press reporter, were on hand to witness the attempt.

Idaho’s prison director said the medical team could not establish an IV line to administer the fatal drug.  A team of three medical team members tried repeatedly to establish an IV, attempting sites in both of Creech’s arms and legs.  The IV sites appeared to be in the crook of his arms, his hands, near his ankles and in his feet.  At one point, the medical cart holding supplies was moved in front of the media witness viewing window, partially obscuring the view of the medical team’s efforts.  A team member also had to leave the execution chamber to gather more supplies....

After the execution was halted, the warden approached Creech and whispered to him for several minutes, giving his arm a squeeze.  Creech’s attorneys immediately filed a new motion for a stay in U.S. District Court, saying “Given the badly botched execution attempt this morning, which proves IDOC’s inability to carry out a humane and constitutional execution, undersigned counsel preemptively seek an emergency stay of execution to prevent any further attempts today.”

The Idaho Department of Corrections said its death warrant for Creech would expire, and that it was considering next steps.

Creech’s attorneys filed a flurry of late appeals hoping to forestall his execution.  They included claims that his clemency hearing was unfair, that it was unconstitutional to kill him because he was sentenced by a judge rather than a jury and that he received ineffective assistance of counsel. But the courts found no grounds for leniency. Creech’s last chance — a petition to the U.S. Supreme Court — was denied a few hours before the scheduled execution Wednesday....

Creech’s execution was to be Idaho’s first in 12 years. Last year, Idaho lawmakers passed a law authorizing execution by firing squad when lethal injection is not available.  Prison officials have not yet written a standard operating policy for the use of firing squad, nor have they constructed a facility where a firing squad execution could occur.  Both of those things would have to happen before the state could attempt to use the new law, which would likely trigger several legal challenges in court.

Two notable executions scheduled for tomorrow after a notably slow capital start to 2024

In the modern capital punishment era, the months of January and February often seem to be fairly active in execution chambers throughout the United States (perhaps in part becaise the holidays of November and December tend to reduce execution numbers).  Using the execution database at the Death Penalty Information Center, I checked out data going back every five years to discover that over the first two months of 2019, there were three executions; in 2014, there were 10 executions; in 2009, there were 15 executions; in 2004, there were 14 executions; and in 1999, there were 22 executions(!) over the first two months of that year.

But so far in 2024, there has only been a single execution in US (albeit a high-profile one due to Alabama's use of a new execution method).  If this month were to close without another execution, we would have the fewest US executions to start a year since 2008 when all executions were halted as the Supreme Court considered constitutional challenges to lethal injection protocols in Baze v. Kentucky.  However, there are actually executions scheduled in two states tomorrow.  Here are press stories providing background:

"Idaho to execute Thomas Creech, infamous serial killer linked to at least 11 deaths"

"A Texas man on death row says his execution this month would be 'for a crime I didn't commit'"

I sense that claims of innocence in the Texas case might create some chance that one of these two scheduled executions does not go forward tomorrow.  But I expect both will be carried out, which would bring the number of executions over the first two month of 2024 up to a total of three.  Notably, the latest DPIC list of upcoming executions does not currently list any executions scheduled this year for the months of March or May and only a couple executions scheduled for April and June.  This schedule certainyl suggest that the historically low number of executions may continue through 2024, although states always can (and often do) add new execution dates in mid-year.

New federal lawsuit from Alabama death row defendant claims nitrogen gas execution method unconstitutional

As reported in this AP piece, an "Alabama death row inmate filed a lawsuit Thursday that challenges the constitutionality of nitrogen gas executions, arguing that the first person in the nation put to death by that method shook violently for several minutes in 'a human experiment that officials botched miserably'."  Here is more:

The lawsuit filed in federal court in Alabama alleges the January execution of Kenneth Eugene Smith by nitrogen gas was torturous and “cannot be allowed to be repeated.” The lawsuit says descriptions from witnesses that Smith shook and convulsed contradicted the state’s promises to federal judges that nitrogen would provide a quick and humane death.

“The results of the first human experiment are now in and they demonstrate that nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful,” attorney Bernard E. Harcourt wrote in the lawsuit. The lawsuit was filed on behalf of death row inmate David Phillip Wilson, who was sentenced to death after he was convicted of killing a man during a 2004 burglary. The lawsuit seeks a declaratory judgment that the current nitrogen gas asphyxiation protocol violates the inmate’s constitutional right to protection from cruel and unusual punishment.

Alabama last month became the first state to use nitrogen gas to put an inmate to death. Nitrogen gas is authorized in three states — Alabama, Oklahoma and Mississippi — but no state had previously attempted to use it.... The U.S. Supreme Court allowed Smith’s execution to proceed last month. The lawsuit contends that media and witness accounts of the execution contradict the state’s prediction to the courts that the nitrogen gas would render Smith unconscious “within seconds.”

Smith shook in thrashing spasms and seizure-like movements for several minutes at the start of the execution. The force of his movements caused the gurney to visibly move at least once. Reporters from The Associated Press, al.com, the Montgomery Advertiser, the Alabama Reflector and WHNT attended the execution as media witnesses. “In stark contrast to the Attorney General’s representations, the five media witnesses chosen by the Alabama Department of Corrections and present at Mr. Smith’s execution recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing,” the lawsuit stated....

Alabama Attorney General Steve Marshall has maintained that the execution was “textbook” and said the state will seek to carry out more death sentences using nitrogen gas. “As of last night, nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one,” Marshall said the morning after Smith’s execution, extending an offer of help for states considering adopting the method.

Alabama Corrections Commissioner John Q. Hamm said he thought Smith might have deliberately held his breath, but also said the state expected involuntary movements and the type of breathing that occurs with lack of oxygen. “That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said.