Thursday, February 02, 2023

Notable trifurcation ruling in federal capital case against Tree of Life mass murderer

The criminal law professor listserve brought to my attention the interesting capital criminal procedure story coming this week from federal court in Pittsburgh.  This local article, headlined "Judge rules Tree of Life death penalty sentencing would occur in 2 phases," provides the basics:

If Robert Bowers is found guilty later this year of killing 11 worshippers inside a Squirrel Hill synagogue in 2018, his sentencing will be broken into two separate phases, a judge ruled this week.  The trial for Mr. Bowers, accused in the Oct. 27, 2018, mass shooting at the synagogue where three congregations — Tree of Life or L’Simcha, Dor Hadash and New Light — were holding Shabbat services, is set to begin in April.

Eleven were killed in the shooting: Joyce Fienberg, Richard Gottfried, Rose Mallinger, Jerry Rabinowitz, David and Cecil Rosenthal, Bernice and Sylvan Simon, Daniel Stein, Melvin Wax and Irving Younger. Two other worshippers and several police officers were injured.

Mr. Bowers’ defense team had sought to split the sentencing phase of the trial — if there is a sentencing phase — into two distinct segments, which would ultimately make the federal case against Mr. Bowers a three-part trial. The trial itself will take place, after which a jury will decide upon Mr. Bowers’ guilt. If he is found guilty, there will be two parts to the sentencing phase.  In the first, jurors will consider whether federal prosecutors have proved that Mr. Bowers is eligible for the death penalty, which the government is seeking. In the second, jurors will decide upon a sentence for Mr. Bowers.

Most notably, the decision by U.S. District Judge Robert J. Colville means that, if there is a sentencing phase, jurors won’t hear victim-impact statements until after they’ve decided if Mr. Bowers is eligible for the death penalty. Defense attorneys had sought this split sentencing, noting that otherwise “the jury will hear the highly emotional and prejudicial victim impact evidence in the same proceeding in which they consider whether the elements of a federal capital crime have been proven.”

In short, defense counsel feared jurors would be unduly swayed to decide Mr. Bowers was eligible for the death penalty if they heard the victim impact statements before making that decision. Federal prosecutors, in expressing opposition to splitting the sentencing phase, noted that the law does not require such a distinction. Plus, they noted, separating the sentencing phases “would unduly complicate the penalty phase, introduce significant risk of jury confusion and run counter to the court’s interest in judicial economy.”

Judge Colville ultimately agreed with the defense, ruling sentencing will be broken into two parts “in an abundance of caution.” He noted that while the court is not required to split the sentencing phase, it has the discretion to do so. 

US District Judge Colville's 14-page opinion granting the defendant’s "Motion to Trifurcate" is available here:

Download USA_v._BOWERS__Docket_No._2_18

February 2, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, February 01, 2023

Texas completes in second execution of 2023

As reported in this AP article, "Texas on Wednesday executed an inmate convicted of fatally shooting a Dallas police officer nearly 16 years ago after a high-speed chase." Here is more:

Wesley Ruiz, 43, received a lethal injection at the state penitentiary in Huntsville, Texas, for the March 2007 killing of Dallas Police Senior Corporal Mark Nix....  Nix, 33, a U.S. Navy veteran of Operation Desert Storm, had been on the Dallas force for nearly seven years and was engaged to be married when he was killed....

Ruiz was the second inmate put to death this year in Texas and the fourth in the U.S.  Seven other executions are scheduled in Texas for later this year, including one next week....

The U.S. Supreme Court earlier Wednesday declined an appeal from Ruiz’s attorneys to halt the execution.  The defense had argued that jurors relied on “overtly racist” and “blatant anti-Hispanic stereotypes” in appraising whether Ruiz posed a future danger, an element needed to secure a death sentence in Texas. Ruiz was Hispanic....

Ruiz was one of five Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs.  Despite a civil court judge in Austin preliminarily agreeing with the claims, the state’s top two courts allowed one of the inmates who had been part of the litigation to be executed on Jan. 10....

Gabriel Luchiano, who knew Nix when he worked as a security guard, said the officer always responded quickly when people needed help at the convenience store in northwest Dallas where Luchiano worked.  He was a “guardian angel,” said Luchiano. “It’s still painful no matter what. Nothing is going to close it.”

February 1, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

Monday, January 30, 2023

"Suffering Before Execution"

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

When condemned people suffer before their executions, does that suffering represent punishment?  I argue that it does not — at least not the suffering on American-style death rows.  American institutions instead administer pre-execution confinement as something closer to non-punitive detention, and I make several normative claims about what should follow from that status.  Among other things, a non-punitive paradigm entails thicker constitutional constraints on solitary confinement and unsafe living conditions.  It also represents a novel solution to a challenging doctrinal puzzle involving confinement, execution, and the Eighth Amendment.

To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself.  Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation.  On average, those whom the state kills will have spent about twenty years in such conditions — up from two years in 1960.  The distribution of this suffering across the death-sentenced prisoner cohort bears little relationship to criminal blameworthiness.  Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment.

That assumption is unjustified as a matter of penal theory, for two reasons.  First, confinement before execution does not meet consensus criteria for punishment.  It is instead suffering that is collateral to an incapacitation interest. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified.  More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would distribute that punishment across the death-sentenced prisoner cohort arbitrarily.

There is a reasonably well-developed body of constitutional law capable of absorbing a shift in the status of pre-execution confinement.  On that constitutional law, when the state detains people primarily to incapacitate them, that detention is preventative, not punitive.  Due process, rather than the Eighth Amendment, constrains such preventative detention. A nonpunitive approach would reduce suffering because the constitutional rules contain different, more stringent constraints on pre-execution confinement.  Such an approach would also give the Supreme Court satisfactory answers to difficult Eighth Amendment questions that have eluded it for quite some time.

January 30, 2023 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (1)

Tuesday, January 24, 2023

Different approaches to death penalty administration from different governors

When it comes to the administration of the death penalty, governors tend to have a huge (and outsized?) role at the state level.  Historically, that role has been exercised through grants of executive clemency, though it can also shape in various ways how death sentencing operates or how executions are conducted.  With the start of a new year, I have seen a number of notable new stories about a number of governors seeking to impact how their states approach capital punishment.

From the AP, "Arizona executions on hold amid review ordered by governor":

Arizona’s attorney general has put a hold on executions in the state until the completion of a review of death penalty protocols ordered by the new governor due to the state’s history of mismanaging executions.

The review ordered Friday by Gov. Katie Hobbs, Arizona’s first Democratic governor since 2009, came as the state’s new Democratic attorney general, Kris Mayes, withdrew her Republican predecessor’s request for a warrant to execute a convicted killer who initially asked to be executed but later backed out of that request.  While Hobbs’ order didn’t declare a moratorium on the death penalty, Mayes will not seek court orders to execute prisoners while the review is underway, said Mayes spokesperson Richie Taylor.

From the Nashville Scene, "Bill Lee Tries to Keep Lethal Injection Alive: Rather than reconsidering capital punishment, the governor will make leadership changes after a damning investigation into Tennessee executions":

In April of last year, the governor — then the media, then the public — learned that the state had bungled drug testing in the hours leading up to the planned execution of 72-year-old Oscar Franklin Smith. Lee issued a last-minute reprieve for Smith and, days later, suspended executions through 2022, citing “technical issues” with the state’s lethal injection process....

On Jan. 9, Frank Strada — previously the deputy director of Arizona’s Department of Corrections — assumed the role of commissioner at the Tennessee Department of Correction with an explicit mandate to bring back Tennessee executions.

From Florida Politics, "Gov. DeSantis calls for juror ‘supermajority’ to suffice in death penalty cases":

Gov. Ron DeSantis started out his week with the Florida Sheriff’s Association (FSA), where he discussed his desire to allow juries to administer the death penalty via a supermajority vote, rather than requiring unanimity.  “Fine, have a supermajority. But you can’t just say one person (can decide against the death penalty). So maybe eight out of 12 have to agree? Or something. But we can’t be in a situation where one person can just derail this,” DeSantis said at the group’s winter conference in St. Johns County, discussing death penalty verdicts left unachieved because of a rogue juror.

DeSantis told the FSA Monday that he wants a “supermajority” to constitute a sufficient vote count for execution. The pitch comes in the wake of the Parkland killer not getting the death penalty because of what DeSantis called one person’s “idiosyncratic” approach to the proceedings, though there ultimately were three votes not to execute the murderer.

January 24, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, January 19, 2023

"The Problem with Capital Pleas"

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

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining.  With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel.

Over the past twenty years, the capital punishment landscape has significantly narrowed, with only twenty new death sentences a year, most coming from the few counties that have the economic resources to pursue the death penalty. The decreased likelihood of receiving a death sentence could, in theory, convince more capital defendants to go to trial as opposed to entering plea deals, especially as juries, even in Texas, are increasingly disinclined to impose death sentences.  But the risk of execution remains too heavy a thumb on the scale.  The effect of this dynamic is that prosecutors essentially have the power to impose mandatory LWOP sentences in homicide cases, simply by threatening to pursue the death penalty.

As such, this essay makes the case that, taken together, the values of the Fifth (right not to plead guilty), Sixth (trial by jury, right of confrontation, right to present witnesses), and Eighth Amendments (right to heightened scrutiny in capital cases) should lead the Court, legislatures, or prosecutors themselves to eliminate plea agreements in capital cases, particularly those that result in LWOP sentences.  Such bargained sentences almost certainly reflect the coercion of the prosecutor in an unequal bargaining dynamic rather than a voluntary acceptance of a proportional punishment for one’s crime.

January 19, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, January 18, 2023

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

January 18, 2023 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (34)

Tuesday, January 17, 2023

California working to clear condemned inmates from death row

This recent NPR piece, headlined "California says it will dismantle death row. The move brings cheers and anger," provides an interesting overview of the state of California's death penalty as it seeks  to clear the nation's largest (and largely dormant) death row.  I recommend the full piece, and here are excerpts:

California this week pushed ahead with controversial efforts to dismantle the largest death row system in America.

Under Gov. Gavin Newsom, the state is moving to make the transfer of condemned inmates permanent and mandatory after what the state's Department of Corrections and Rehabilitation (CDCR) calls a successful pilot program that voluntarily moved 101 inmates off death row into general population prisons across the state....

After a 45-day public comment period and a public hearing in March, the state hopes to start moving all 671 death row inmates – 650 men and 21 women — into several other prisons across the state with high-security units. Some prisoners will be able to get jobs or cellmates if they are mainstreamed into the general prison population.

The CDCR says the move allows the state "to phase out the practice of segregating people on death row based solely on their sentence." No inmates will be re-sentenced and no death row commutations offered, officials say.

Technically, the death penalty still exists in California. Prosecutors can still seek it. But no one has been put to death in the state in 17 years. And in 2019, Newsom imposed a moratorium on executions and he closed the death chamber at San Quentin, the decrepit and still heavily used 19th century prison overlooking San Francisco Bay.

Those who get prison jobs — as clerks, laundry or kitchen helpers – will see 70 percent of their pay go to victims' families, as required under Proposition 66. That 2016 voter-passed initiative amended California's Penal Code to require death-sentenced inmates to work and pay restitution....

But death penalty proponents and victims' rights advocates are frustrated and angry. "To hear this news is devastating," says Sandra Friend. She described feeling victimized all over again. Her 8-year-old son Michael Lyons was making his way home from school in Yuba City, Calif., in 1996 when he was abducted and sodomized by serial killer Robert Boyd Rhoades, who dumped the child's body in a riverbed....

In part, California's death penalty reforms grew out of 2016's Prop. 66, which promised to speed up the time between a death sentence and an execution. The successful ballot measure also required condemned prisoners to work and pay restitution. Now death penalty proponents accuse Newsom of exploiting a lesser-known section of Prop. 66 for his own ideological and political purposes.

"The governor has taken loopholes and nuances in the law and used them to give criminals — the worst criminals — a break," says Michael Rushford, president of the conservative Criminal Justice Legal Foundation. "To start mainstreaming people like Tiequon Cox, who killed an entire family in Los Angeles after going to the wrong address to do a gang hit, is an abandonment of justice. Injecting politics into criminal justice and public safety is insane. It's unjust, unfair and it's stupid."...

In California, Sandra Friend says it's outrageous that killers like Rhoades may "get rewarded," as she puts it, with expanded work options, even a cellmate. "For him to be able to leave death row and go into a cushier prison, having maybe possibly a cellie, having a job, is terrifying because he is the worst of the worst. He is a monster," she says.

State officials underscore that inmate transfers and their housing will depend on the specific facts of each inmate. "Their housing would depend on their individual case factors, and it's what the multidisciplinary teams will be evaluating," says CDCR spokeswoman Vicky Waters.... The state hopes to permanently empty California's death row by this fall, a CDCR official says.

Friend vows to fight the effort. A public hearing on the issue is scheduled in Sacramento for March 8. "I'm definitely going to make Michael's voice heard," she says, "because he's the one that is getting lost in all of this."

January 17, 2023 in Death Penalty Reforms, Prisons and prisoners, Who Sentences | Permalink | Comments (9)

Thursday, January 12, 2023

Oklahoma become third state to complete an execution at the start of 2023

As detailed in this press report, "Oklahoma executed a man Thursday who was convicted of killing an elderly couple and committing other crimes 20 years ago before authorities caught up to him in Texas after a manhunt."  Here is more:

Scott James Eizember, 62, received a lethal injection at the Oklahoma State Penitentiary in McAlester and was pronounced dead at 10:15 a.m. local time....

Eizember's attorneys did not deny he killed A.J. Cantrell, 76, and his wife, Patsy Cantrell, 70, on Oct. 18, 2003. But they told the state's Pardon and Parole Board last month that the killings were unplanned and spontaneous and his life still had value. The board voted 3-2 to reject a clemency recommendation.

"He has felt remorse every day of his imprisonment.  There is no reason to kill him next month other than revenge," attorney Mark Henricksen told the board.

After the execution, several members of the Cantrell spoke of the pain the family has endured and voiced concern at the length of time it took for Eizember to be executed.  "After living this nightmare, I must say that 20 years is too long for justice to be served," Johnny Melton, the slain couple's nephew, said in a statement read on behalf of the family.  "We want to get it right and we absolutely want to ensure that everyone's rights are protected, but the process is much too slow."

Melton also stressed the importance of addressing domestic violence and improving mental health treatment, in the state of Oklahoma and across the nation.  "I know this is going to be a controversial statement, but I believe it to be a fact. It is the abuser who needs help. They need it when they are young," Melton said. "By the time the victim needs help, it's too late."...

Eizember filed a last-minute lawsuit seeking to have his spiritual adviser with him inside the death chamber during his execution after the Department of Corrections rejected the minister because of [Rev. Jeffrey] Hood's history of anti-death penalty activism, including arrests.  The DOC reversed course on that decision Wednesday, citing concerns from the Cantrell family that the decision could lead to Thursday's execution being called off.  The U.S. Supreme Court ruled last year that states must accommodate the wishes of death row inmates who want to have their pastors pray aloud and even touch them during their executions.

Oklahoma uses a three-drug lethal injection method starting with the sedative midazolam, rendering the person unconscious, followed by a paralytic vecuronium bromide and finally potassium chloride, which stops the heart.  Eizember's execution was the eighth in Oklahoma since the state resumed executions in 2021.

January 12, 2023 in Death Penalty Reforms | Permalink | Comments (3)

Wednesday, January 11, 2023

Texas completes its first executon of 2023

Texas completed only five executions in 2022 (and only three in 2021 and 2020), but the state already has six executions planned for the first few months of 2023. And, as detailed in this AP article, the first of those scheduled execution was carried out yesterday. Here are the basics:

A former suburban Houston police officer was executed Tuesday for hiring two people to kill his estranged wife nearly 30 years ago amid a contentious divorce and custody battle.

Robert Fratta, 65, received a lethal injection at the state penitentiary in Huntsville for the November 1994 fatal shooting of his wife, Farah. He was pronounced dead at 7:49 p.m., 24 minutes after the lethal dose of the powerful sedative pentobarbital began flowing into his arms.

For about three minutes before the execution began, Fratta’s spiritual adviser, Barry Brown, prayed over Fratta, who was strapped to the death chamber gurney with intravenous needles in each arm.... Asked by the warden if he had a final statement, Fratta replied: “No.”...

Prosecutors say Fratta organized the murder-for-hire plot in which a middleman, Joseph Prystash, hired the shooter, Howard Guidry. Farah Fratta, 33, was shot twice in the head in her home’s garage in the Houston suburb of Atascocita. Robert Fratta, who was a public safety officer for Missouri City, had long claimed he was innocent.

The punishment was delayed for little more than an hour until the last of a flurry of final-day appeals cleared the U.S. Supreme Court and Texas’ highest courts, the Texas Supreme Court and Texas Court of Criminal Appeals. Fratta’s lawyers argued unsuccessfully that prosecutors withheld evidence that a trial witness had been hypnotized by investigators, leading her to change her initial recollection that she saw two men at the murder scene as well as a getaway driver....

Fratta was also one of four Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. That lawsuit also failed late Tuesday,

The Supreme Court and lower courts previously rejected appeals from Fratta’s lawyers that sought to review claims arguing insufficient evidence and faulty jury instructions were used to convict him. His attorneys also unsuccessfully argued that a juror in his case was not impartial and that ballistics evidence didn’t tie him to the murder weapon....

Fratta was first sentenced to death in 1996, but his conviction was overturned by a federal judge who ruled that confessions from his co-conspirators shouldn’t have been admitted into evidence. In the same ruling, the judge wrote that “trial evidence showed Fratta to be egotistical, misogynistic, and vile, with a callous desire to kill his wife.” He was retried and resentenced to death in 2009....

Fratta was the first inmate put to death this year in Texas and the second in the U.S. Eight other executions are scheduled in Texas for later this year.

January 11, 2023 in Death Penalty Reforms | Permalink | Comments (1)

Saturday, January 07, 2023

Noticing the shape of the federal death penalty circa 2023

Just under 20 years ago, in the inaugural issue of the Ohio State Journal of Criminal Law, Carol Steiker and Jordan Steiker authored this fascinating little article imagining the death pemalty circa 2022.  The article's title, "Abolition in Our Time," reveals that the piece did not perfectly predict the future.  But the piece did have this somewhat prescient take on how "the politics of the death penalty have shifted":

Prominent politicians in both parties are willing to oppose the death penalty publicly, though very few make it a political priority. Many such leaders also distinguish between the importance of retaining the death penalty for cases in which "vital national interests" are at stake — the war on terrorism — and cases involving ordinary state law enforcement.

The Steikers' article came to mind for me today as I read this new New York Times piece discussing the current state of the federal death penalty. The piece is headlined "Suspect in Bike Path Killing Faces First Death Penalty Trial Under Biden," and here are excerpts:

On Halloween 2017, Sayfullo Saipov plowed a rented pickup truck down Manhattan’s crowded West Side bicycle path, smashing into pedestrians and cyclists, killing eight people and injuring more than a dozen, the authorities said.

Soon after Mr. Saipov was charged, President Donald J. Trump tweeted, “SHOULD GET DEATH PENALTY!” And his attorney general later directed prosecutors to seek execution if Mr. Saipov was convicted.

Last year, Mr. Saipov’s lawyers asked President Biden’s Justice Department to withdraw that order. Mr. Biden, after all, had campaigned against capital punishment. But his attorney general, Merrick B. Garland, denied the request, and on Monday, Mr. Saipov’s trial is scheduled to begin in Federal District Court in Manhattan — the first federal death penalty trial under the Biden administration.

Mr. Garland’s decision to continue pursuing the death penalty for Mr. Saipov, an Uzbek immigrant, suggests a nuanced approach, one in which he has been reluctant to withdraw the threat of capital punishment in one type of case in particular: terrorism-related offenses....

Since taking office nearly two years ago, Mr. Garland has not sought capital punishment in any new case and indeed has declared a nationwide moratorium on federal executions. The Justice Department has also withdrawn directives issued by previous administrations seeking the death penalty against 25 federal defendants, according to court records and the department’s data.

At the same time, the department has defended appeals of the death sentences imposed during President Barack Obama’s administration on Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann S. Roof, the white supremacist who killed nine members of a Black church in South Carolina....

A spokesman for the Justice Department said that as a matter of policy it does not offer public reasons for decisions to withdraw death penalty directives. Nicholas Biase, a spokesman for the U.S. attorney’s office in Manhattan, and David E. Patton, a lawyer for Mr. Saipov, declined to comment on the case.

But some lawyers said a pattern had emerged: None of the 25 defendants for whom the Justice Department has withdrawn death penalty requests were charged in a terrorism-related offense.  “Early on, it became clear that notwithstanding the statements made by both the president and the attorney general, that there was going to be this sort of carve-out around terrorism,” said Anthony L. Ricco, a veteran death penalty defense lawyer in New York.

January 7, 2023 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Wednesday, January 04, 2023

"Death Penalty Abolition, the Right to Life, and Necessity"

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

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life.  Notably, this right-to-life argument emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm.  Can capital punishment be necessary in this sense — and thus justified defensive killing?  If so, the right-to-life argument would have to admit certain exceptions where executions are justified.  Drawing on work by Hugo Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world.  A state’s obligations to its prisoners include the obligation to use nonlethal incapacitation (ONI), which applies as long as prisoners pose no imminent threat.  ONI precludes executions for reasons of future dangerousness.  By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground.

January 4, 2023 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Monday, January 02, 2023

Missouri scheduled to execute transgender woman

The first US execution in a new year is always notable, but the execution that Missouri has scheduled for Tuesday, January 3 is noteworthy for a variety of reasons.  The headline of this AP piece provides the basics: "Transgender woman’s scheduled execution would be US first."  Here are more of the details:

Unless Missouri Gov. Mike Parson grants clemency, Amber McLaughlin, 49, will become the first transgender woman executed in the U.S.  She is scheduled to die by injection Tuesday for killing a former girlfriend in 2003.  McLaughlin’s attorney, Larry Komp, said there are no court appeals pending.

The clemency request focuses on several issues, including McLaughlin’s traumatic childhood and mental health issues, which the jury never heard in her trial.  A foster parent rubbed feces in her face when she was a toddler and her adoptive father used a stun gun on her, according to the clemency petition.  It says she suffers from depression and attempted suicide multiple times.

The petition also includes reports citing a diagnosis of gender dysphoria, a condition that causes anguish and other symptoms as a result of a disparity between a person’s gender identity and their assigned sex at birth.  “We think Amber has demonstrated incredible courage because I can tell you there’s a lot of hate when it comes to that issue,” her attorney, Larry Komp, said Monday.  But, he said, McLaughlin’s sexual identity is “not the main focus” of the clemency request.

Parson’s spokesperson, Kelli Jones, said the review process for the clemency request is still underway.

There is no known case of a transgender inmate being executed in the U.S. before, according to the anti-execution Death Penalty Information Center.  A friend in prison says she saw McLaughlin’s personality blossom during her gender transition.

Before transitioning, McLaughlin was in a relationship with girlfriend Beverly Guenther.  McLaughlin would show up at the suburban St. Louis office where the 45-year-old Guenther worked, sometimes hiding inside the building, according to court records.  Guenther obtained a restraining order, and police officers occasionally escorted her to her car after work.

Guenther’s neighbors called police the night of Nov. 20, 2003, when she failed to return home. Officers went to the office building, where they found a broken knife handle near her car and a trail of blood.  A day later, McLaughlin led police to a location near the Mississippi River in St. Louis, where the body had been dumped.

McLaughlin was convicted of first-degree murder in 2006.  A judge sentenced McLaughlin to death after a jury deadlocked on the sentence.  A court in 2016 ordered a new sentencing hearing, but a federal appeals court panel reinstated the death penalty in 2021....

The only woman ever executed in Missouri was Bonnie B. Heady, put to death on Dec. 18, 1953, for kidnapping and killing a 6-year-old boy.  Heady was executed in the gas chamber, side by side with the other kidnapper and killer, Carl Austin Hall.

Nationally, 18 people were executed in 2022, including two in Missouri.

Though McLaughlin status as potentially the first transgender woman to be executed is what is making headlines, the fact she was sentenced to death by a judge rather than a jury is also noteworthy.

UPDATE: As detailed in this CNN piece, Missouri's Governor denied McLaughlin's clemency request and the first execution in the US in 2023 was completed in the early evening of January 3:

McLaughlin, 49, and her attorneys had petitioned Republican Gov. Mike Parson for clemency, asking him to commute her death sentence. Aside from the fact a jury could not agree on the death penalty, they say, McLaughlin has shown genuine remorse and has struggled with an intellectual disability, mental health issues and a history of childhood trauma.

But in a statement Tuesday, Parson’s office announced the execution would move forward as planned. The family and loved ones of her victim, Beverly Guenther, “deserve peace,” the statement said. “The State of Missouri will carry out McLaughlin’s sentence according to the Court’s order,” Parson said, “and deliver justice.”...

“McLaughlin was pronounced dead at 6:51 p.m.,” the Missouri Department of Corrections said in a written statement. A spokesperson did not say if McLaughlin had a final statement.

January 2, 2023 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (4)

Tuesday, December 20, 2022

State judge blocks plans of Nevada Pardon Board to discuss possible commutation of all state death sentences

As reported in this local article, a "Carson City District Court judge Monday ruled the state Board of Parsons may not consider commuting every death sentence in Nevada at its Tuesday meeting." The six page ruling is available at this link, and the first sentence of the last paragraph of the opinion states: "The Board's planned action, should it be permitted to occur, will violate the Nevada Revised Statutes, the Nevada Administrative Code, and the Nevada Constituion." Here is more about the ruling and the context from the press report:

Judge James Wilson issued a writ of prohibition against the board and Gov. Steve Sisolak — who asked the board to consider the commutations — after the Washoe County district attorney’s office filed an emergency petition on Friday seeking to block the move.

Wilson ruled that the board had not properly notify the families of murder victims of its intent to commute the death sentences of the 57 people currently on death row, that those inmates had not exhausted all of their appeals and that they had not applied to the board to lessen their sentences. In addition, the board is required to consider each case individually, and cannot grant “categorical” clemencies, Wilson ruled.

“The Board’s proposed action would violate the Nevada Constitution by failing to provide (victim’s families) with reasonable notice of these public proceedings, so that they may exercise their constitutional right to be reasonably heard regarding the proposed commutation of 57 death sentences,” Wilson wrote. “Each victim is entitled to be treated with fairness, respect, dignity and the right to be reasonably heard at any hearings involving the commutation of sentence.”

In addition, the law requires a consideration of each individual case on its merits, which would be impossible at Tuesday’s meeting, Wilson wrote. “Equally evident in the plain meaning of the statutory and administrative code is the Board’s obligation to make an individualized determination in each clemency matter,” Wilson wrote. “Even if individual applications had been submitted for each of the 57 persons on death row, the type of individualized determination that is mandated by (state law) and (administrative regulations) cannot be reasonably accomplished at a single meeting of the Board.”

Finally, Wilson wrote, the board can’t do a mass commutation. State law “does not permit the Board to grant ‘categorial’ exemptions, as this would amount to the Board creating statutory exceptions to a form of punishment specifically provided for by the legislature. It is not the Board’s prerogative to amend statutes.”...

The controversy began last week, when Sisolak urged the board to consider commuting every death sentence in the state. The board, which decides clemency cases in Nevada, is made up of the governor, the attorney general and all seven members of the Nevada Supreme Court. That prompted the Washoe County district attorney’s office to file a motion to block the move on Friday....

Meanwhile, Gov.-elect Joe Lombardo, a career police officer who currently serves as the sheriff of Clark County, hailed the ruling: “I’m thankful to Judge James Wilson for upholding the law, and I’m grateful that he protected the voter-approved constitutional rights of crime victims and their families.  I’m relieved that justice has prevailed through Marsy’s Law,” Lombardo said in a statement.  Marsy’s Law was a 2018 voter-approved constitutional amendment that provided rights to crime victims, including to have a notice of all hearings, to attend those hearings and to speak about the proceedings.

In addition to Washoe County, the Clark County district attorney’s office asked the Nevada Supreme Court to block Tuesday’s hearings, making similar arguments to its counterpart in Washoe County. Not only that, but Jennifer Otremba, the mother of 15-year-old murder victim Alyssa Otremba, filed a similar petition with the Supreme Court on Monday, arguing that changing the board’s agenda without giving notice to victims’ families violated Marsy’s Law.  “The Pardons Board’s rushed effort to commute all capital sentences without the mandated notice and application has not only robbed Jennifer of her right to participate, it has also deprived the Pardons Board of jurisdiction to proceed,” Otremba’s petition said.

Otremba has addressed the Legislature multiple times in recent years as an opponent of abolishing the death penalty.  Her daughter’s killer, Javier Righetti, was sentenced to die for raping and stabbing the teenager more than 80 times in 2011, during the girl’s first week at Arbor View High School.

Bills to repeal the death penalty have been repeatedly introduced in the Legislature, but none have ever passed.  In 2021, a repeal bill passed the Assembly but died in the state Senate. Sisolak at the time said he was generally opposed to capital punishment, but wanted exceptions for especially heinous crimes such as the mass shooting that took place on 1 October in Las Vegas.

December 20, 2022 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, December 16, 2022

DPIC releases year-end report emphasizing botched executions and no 2022 increases in death penalty support

The Death Penalty Information Center this morning released this annual report under the heading "The Death Penalty in 2022: Year End Report; Public Support for Death Penalty at Near-Record Low Despite Perception that Violent Crime is Up."  Here is the start of the report's introduction, with lots and lots of interesting capital punishment data and discussion thereafter:

In a year awash with incendiary political advertising that drove the public’s perception of rising crime to record highs, public support for capital punishment and jury verdicts for death remained near fifty-year lows.  Defying conventional political wisdom, nearly every measure of change — from new death sentences imposed and executions conducted to public opinion polls and election results — pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.

The Gallup crime survey, administered in the midst of the midterm elections while the capital trial for the 2018 mass shooting at Marjory Stoneman Douglas High School in Florida was underway, found that support for capital punishment remained within one percentage point of the half-century lows recorded in 2020 and 2021.  The 22 new death sentences imposed in 2022 are fewer than in any year before the pandemic, and just 4 higher than the record lows of the prior two years.  With the exception of the pandemic years of 2020 and 2021, the 18 executions in 2022 are the fewest since 1991.

One by one, states continued their movement away from the death penalty.  On December 13, 2022, Oregon Governor Kate Brown announced the commutation of the capital sentences of all 17 death-row prisoners and instructed corrections officials to begin dismantling the state’s execution chamber.  The commutations completed what she called the “near abolition” of the death penalty by the state legislature in 2019.  Thirty-seven states — nearly three-quarters of the country — have now abolished the death penalty or not carried out an execution in more than a decade.

For the eighth consecutive year, fewer than 30 people were executed and fewer than 50 people were sentenced to death.  The five-year average of new death sentences, 27* per year, is the lowest in 50 years.  The five-year average of executions, 18.6 per year, is the lowest in more than 30 years, a 74% decline over the course of one decade.  Death row declined in size for the 21st consecutive year, even before Governor Brown commuted the sentences of the 17 prisoners on Oregon’s death row.

2022 could be called “the year of the botched execution” because of the high number of states with failed or bungled executions. Seven of the 20 execution attempts were visibly problematic — an astonishing 35% — as a result of executioner incompetence, failures to follow protocols, or defects in the protocols themselves.  On July 28, 2022, executioners in Alabama took three hours to set an IV line before putting Joe James Jr. to death, the longest botched lethal injection execution in U.S. history.  Executions were put on hold in Alabama, Tennessee, Idaho, and South Carolina when the states were unable to follow execution protocols.  Idaho scheduled an execution without the drugs to carry it out.  One execution did not occur in Oklahoma because the state did not have custody of the prisoner and had not made arrangements for his transfer before scheduling him to be put to death.

December 16, 2022 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (0)

Wednesday, December 14, 2022

Mississippi completes likely last execution in United States for 2022

As reported in this AP article, a "man who raped and killed a 16-year-old girl in Mississippi was put to death by lethal injection on Wednesday, becoming the second inmate executed in the state in 10 years." Here is more:

Thomas Edwin Loden Jr., 58, was pronounced dead at 6:12 p.m. by Sunflower County Coroner Heather Burton. He’d been on death row since 2001, when he pleaded guilty to capital murder, rape and four counts of sexual battery against Leesa Marie Gray. She was stranded with a flat tire in June 2000 when Loden forced her into his van....

Earlier this month, a federal judge declined to block Loden’s execution amid a pending lawsuit by him and four other Mississippi death row inmates over the state’s use of three drugs for lethal injections, a protocol they allege is inhumane....

In November, Alabama Gov. Kay Ivey sought a pause in executions and ordered a “top-to-bottom” review of the state’s capital punishment system after a series of failed lethal injections. Mississippi has done “mock executions and drills” on a monthly basis to avoid a botched execution, Jeworski Mallett, deputy commissioner of institutions for the Department of Corrections, told reporters.

The Department of Corrections revealed in court papers in July 2021 that it had acquired three drugs for its lethal injection protocol: midazolam, which is a sedative; vecuronium bromide, which paralyzes the muscles; and potassium chloride, which stops the heart. Since 2019, only Alabama, Oklahoma, Mississippi and Tennessee have used a three-drug protocol, said Jim Craig, a MacArthur Center attorney, speaking at a November court hearing.

This page at the Death Penalty Information Center reports that there are execution dates scheduled in two states tomorrow, but also that those execution are not likely to move forward. Therefore it appears that this Mississippi execution will be the last in the US this year, which means that there were a total of 18 execution in this us in 2022. That marks more executions in the US than in 2021 (11) and 2020 (17), but fewer than in every other year going back until 1991 (14).

December 14, 2022 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (1)

Tuesday, December 13, 2022

Outgoing Oregon Gov commutes all 17 of state's remaining death sentences to LWOP

As detailed in this local article, "Gov. Kate Brown announced on Tuesday afternoon that she would commute the sentences of all 17 individuals on Oregon’s death row to life in prison without the possibility of parole, the latest in her end-of-term string of clemency decisions."  Here is more:

“I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people — even if a terrible crime placed them in prison,” Brown said in a statement sent out in a press release.  “This is a value that many Oregonians share,” Brown said.  The governor also directed the Department of Corrections to dismantle the state’s death chamber.

Oregon has not executed anyone on death row for a quarter century and Brown continued the moratorium that former Gov. John Kitzhaber put in place in 2011.  Governor-elect Tina Kotek, who like Brown and Kitzhaber is a Democrat, is personally opposed to the death penalty based on her religious beliefs and said during the campaign that she would continue the moratorium.

Voters have gone back and forth on the death penalty over the years, abolishing and reinstating it repeatedly.  Voters’ most recent decision on the death penalty was in 1984, when they inserted it into the state Constitution....

In 2019, the Legislature passed a bill that limited the crimes that qualified for the death penalty by narrowing the definition of aggravated murder to killing two or more people as an act of organized terrorism; intentionally and with premeditation kilIing a child younger than 14; killing another person while locked up in jail or prison for a previous murder; or killing a police, correctional or probation officer....

Brown said in her statement Tuesday that commuting the sentences of people currently serving on Oregon’s death row was consistent with what she described as lawmakers’ “near abolition” of capital punishment.  “Unlike previous commutations I’ve granted to individuals who have demonstrated extraordinary growth and rehabilitation, this commutation is not based on any rehabilitative efforts by the individuals on death row,” Brown said.  “Instead, it reflects the recognition that the death penalty is immoral. It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.”

Twelve of the seventeen people on death row are white, three are Latino, one is American Indian or Alaska Native and one is Black, according to the governor’s office....

Rosemary Brewer, executive director of the Oregon Crime Victims Law Center, said it was her understanding that staff at the Oregon Department of Justice Crime Victim and Survivor Services Division had been working all day Tuesday to notify family members and had reached all of the families impacted by the death row commutations.  A spokesperson for the governor confirmed that the DOJ division handled notification. However, Brewer said the governor should have given families more advance notice of her decision.

“I think the victims should have been told about this so they had some time to prepare for it,” Brewer said.  “These are horrific cases that left completely devastated families.  They’re preparing for the holidays and all of a sudden, they see in the (newspaper) that the person who traumatized — devastated — their families had their death sentence commuted.”...

Advocates including the Oregon Justice Resource Center pushed for the governor to commute all death row sentences for years.  On Tuesday, the center’s executive director Bobbin Singh said in a statement that Brown “has made the right choice for Oregon in commuting these death sentences and dismantling the death chamber.”...

Brown’s clemency actions, which included early release for people deemed at risk of serious health impacts from COVID-19 and inmates who helped fight Oregon’s catastrophic 2020 wildfires, have freed roughly 1,000 people from state prisons.  The Oregonian/OregonLive asked Brown’s spokespeople on Friday for the total number of people for whom the governor had issued pardons and commuted sentences.  On Tuesday, press secretary Liz Merah responded that the governor has commuted the sentences of a total of 1,189 incarcerated people.

The governor also pardoned approximately 45,000 people this year for their marijuana possession convictions, although that did not result in anyone being freed from prison because no one in Oregon was incarcerated for simple possession of an ounce or less of marijuana. And she issued 77 other pardons for crimes that the governor’s office did not identify.

Oregon Senate Republican Leader Tim Knopp, R-Bend, released a statement late Tuesday asking whether the people of Oregon had voted to end the death penalty.  “I don’t recall that happening,” he said.  “This is another example of the Governor and the Democrats not abiding by the wishes of Oregonians.  Even in the final days of her term, Brown continues to disrespect victims of the most violent crimes.”

The official press release from Gov. Brown's office, titled "Governor Kate Brown Commutes Oregon's Death Row," is available at this link.

December 13, 2022 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, December 09, 2022

Notable review of (increasing?) number of botched lethal injection executions

The Death Penalty Information Center has this notable new posting to mark a notable anniversary under this heading: "As Lethal Injection Turns Forty, States Botch a Record Number of Executions."  Here is how the lengthy posting gets started (with links from the original):

On December 7, 1982, Texas strapped Charles Brooks to a gurney, inserted an intravenous line into his arm, and injected a lethal dose of sodium thiopental into his veins, launching the lethal-injection era of American executions.  In the precisely forty years since, U.S. states and the federal government have put 1377 prisoners to death by some version of the method.  Touted as swift and painless and a more humane way to die — just as execution proponents had said nearly a century before about the electric chair — the method has proven to be anything but.

Experts say lethal injection is the most botched of the execution methods, estimated to go wrong more frequently than any other method.  And autopsies of more than 200 prisoners put to death by lethal injection found that, regardless of the outward appearance of a tranquil death, 84% of those executed showed evidence of pulmonary edema — a fluid build-up in the lungs that creates a feeling of suffocation or drowning that experts have likened to waterboarding.

Moreover, American pharmaceutical companies universally oppose what they consider the misuse of their medicines to take the lives of prisoners, and the medical community universally deems it unethical for medical personnel to participate in executions.  That means states are relying on what drugs they can lay their hands on — increasingly obtained illegally or by subturfege — from often unreliable sources and administered by inadequately trained prison personnel ill equipped to handle the job and performing it behind an expanding veil of secrecy provisions.

As lethal injection turns forty, states are botching executions in record numbers — seven alone in 2022 in 19 execution attempts, an astonishing 37%.  In articles in Slate and The Conversation on November 21 and November 29, 2022, Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College and author the 2014 book, Gruesome Spectacles: Botched Executions and America’s Death Penalty, says that from Brooks’ execution through 2009, “more than 7 percent of all lethal injections were botched … [and] things have only gotten worse.”

The parenthetical in the title of this post is prompted by the fact that I do not think our society was scrutinizing lethal injections executions nearly as much in the 1980s and 1990s as we have in more recent decades. Though it is quite possible that more executions are being "botched" in recent years, I think it is also quite possible that we are now just much more likely to take notice of lethal injection execution difficulties.

December 9, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (7)

Monday, December 05, 2022

Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended

Dictionary.com defines a moratorium as "a suspension of activity," and two weeks ago the Governor of Alabama, as noted here, seemed to call for a suspension of executions after the state exeperienced two botched execution efforts.  But, as reported in this new local article, the Attorney General of Alabama is eager to make the case that the suspension of executions in the state is not a moratorium:

Alabama Attorney General Steve Marshall said Monday afternoon that “there is no moratorium” on executions in Alabama, but he will still allow for an efficient review of the state’s execution process. “I stand before you today to be very clear: Insofar as I and my office are concerned, there is no moratorium, nor will there be, on capital punishment in Alabama,” Marshall said.

Gov. Kay Ivey in late November called for the suspension of executions in Alabama for a “top-to-bottom review” after prison staff failed to complete a second straight execution. Marshall indicated that he won’t request any new execution dates before Ivey’s office carries out its review, so long as it doesn’t cause an “unreasonable” delay.

“What I want to make sure is … that we’ve given [Ivey] an opportunity to do this review, … to make sure that I hear from her that there is confidence that we have the ability to execute,” Marshall said. “…I’m also sitting here telling you that we’re not going to stand very long in a delay.” Ivey's spokesperson, Gina Maiola, said “discussions have already begun” regarding the review of the Alabama Department of Corrections' execution process. Marshall added that he has not spoken with Ivey directly, but that he is “looking forward to [their] conversation.”

There are no pending execution dates before the Alabama Supreme Court and no scheduled executions in Alabama, Marshall said. Marshall’s office solely has power to request an execution date from the Alabama Supreme Court.

On Nov. 17, officials called off the execution of Kenneth Eugene Smith as staff was unable to set the necessary IV lines for the lethal injection. Alan Miller’s execution was similarly called off just two months before because of issues finding a vein. Marshall blamed the failure to carry out the executions on Smith and Miller for filing federal court challenges to their death sentences that were not resolved until as late as 10 p.m. of the day of their scheduled executions....

Alabama has since reached an agreement to not attempt a second lethal injection on Miller, but it may use nitrogen gas to execute him in the future. The state still does not have a protocol in place for the untried method that was approved in 2018, but Marshall said the state is in the “final stages” of developing it.

A few prior related posts:

December 5, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Thursday, December 01, 2022

Elaboration of dissent from SCOTUS denial of stay before Missouri execution

I flagged in this post the notable pre-execution litigation in Missouri before the execution of Kevin Johnson on Tuesday evening.  A helpful colleague made sure I did not miss this four-page opinion, released yesterday and authored by Justic Jackson and joined by Justice Sotomayor, dissenting from the Supreme Court's denial of the application for a stay.  Here is how it begins and a key paragraph within:

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty.  Now, one day later, I write to explain my vote to grant his stay request.  For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay.  I also believe that the equities weighed in Johnson’s favor....

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures.  But that appears to be what happened in this case, insofar as §547.031 was properly invoked through the filing of a motion to vacate but the Missouri Supreme Court determined that the reviewing court did not need to hold the mandatory hearing that allows for the presentation of evidence related to that motion, because, regardless, there was insufficient evidence to sustain the motion.  In my view, this reading of §547.031 was so fundamentally flawed, and so at odds with basic due process principles, that Johnson was likely to succeed in establishing that the procedures afforded in connection with the §547.03 motion amounted to a Fourteenth Amendment violation.

Prior related posts:

December 1, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Wednesday, November 30, 2022

Missouri completes execution after SCOTUS rejects final stay appeal

As reported in this NBC News piece, a "Missouri inmate convicted of ambushing and killing a St. Louis-area police officer he blamed for the death of his younger brother was executed Tuesday, officials said." Here is more:

Kevin Johnson, 37, was put to death by lethal injection at the state prison in Bonne Terre. The execution began at 7:29 p.m., and Johnson was pronounced dead at 7:40 p.m., said Karen Pojmann, a spokesperson for the Missouri Department of Corrections....

Johnson had admitted to shooting and killing Kirkwood Police Sgt. William McEntee in 2005. Johnson was 19 at the time.

Edward Keenan, a court-appointed special prosecutor, had sought to vacate his death sentence. Keenan argued in an appeal to the Missouri Supreme Court that Johnson's trial was "infected" with racist prosecution techniques and that racial discrimination played a part in his receiving the death penalty. One of Johnson’s attorneys, Shawn Nolan, said, “Make no mistake about it, Missouri capitally prosecuted, sentenced to death, and killed Kevin because he is Black.”

Johnson was executed after the U.S. Supreme Court denied a request for a stay Tuesday evening. Justices Sonia Sotomayor and Ketanji Brown Jackson would have granted it, court records show....

Mary McEntee, the slain officer’s widow, said Tuesday that her husband was executed on July 5, 2005, when he was “ambushed and shot five times in his police car.” He was then shot twice more, she said. “During this process, many have forgot Bill was the victim,” Mary McEntee said Tuesday night. “We miss Bill every day of our lives.”...

On July 5, 2005, police were searching for Johnson, who was on probation for assaulting his girlfriend. Police believed he had violated probation. McEntee was among the officers sent to Johnson's home. Johnson's 12-year-old brother, who had a congenital heart defect, ran next door to his grandmother's house, where he suffered a seizure. He died at the hospital. Johnson testified at trial that McEntee kept his mother from entering the house to aid his brother. According to Johnson, that same evening he encountered McEntee when he returned to his neighborhood for an unrelated call about a fireworks disturbance. Johnson shot McEntee several times and fled, according to prosecutors. He turned himself in three days later....

Johnson's daughter, Khorry Ramey, 19, had sought to witness the execution, but a state law prohibits anyone younger than 21 from observing the process. The American Civil Liberties Union filed a lawsuit last week asking a federal court to allow her to attend her father's execution, but a judge ruled Friday that a state law barring her from being present because of her age was constitutional....

McEntee had three children, ages 7, 10 and 13, when he was killed, his widow said Tuesday night after the execution. “They didn’t have a chance to say goodbye,” Mary McEntee said. “It took 17 years of grieving and pushing forward to get to this point today. This is something I hope no other family has to go through.”

This SCOTUSblog post,  titled "Court green-lights execution of Missouri man who presented evidence of racist prosecutor," discusses a bit more fully the issues that were brought to and rejected by SCOTUS prior to the execution.  And this execution marked the fifth execution carried out by state officials in the United States in November.  According to Death Penalty Information Center data, this is the most executions carried out by state official in one month in the US since January 2015.

November 30, 2022 in Death Penalty Reforms | Permalink | Comments (0)

Monday, November 28, 2022

Missouri Supreme Court considering [UPDATE: rejects] special prosecutor's motion to vacate death sentence due to "racist prosecution techniques"

As detailed in this local article, the Missouri Supreme Court "held an expedited hearing Monday to hear oral arguments for two motions to stay [Kevin] Johnson’s execution, in order to hold a hearing on alleged constitutional violations in his original trial." This last minute litigation, before an execution scheudled for Tuesday afternoon, is especially interesting because of who is seeking a stay and on what grounds:

One of the motions came from Edward Keenan, who is the special prosecutor the St. Louis County Circuit Court appointed in October to review Johnson’s conviction. “All parties can agree that the timing here is less than ideal, but we’re at where we’re at,” Keenan told the Supreme Court judges Monday....

During the hearing, Keenan said he found evidence of unconstitutional racial discrimination behind then-St. Louis County Prosecuting Attorney Robert McCulloch’s prosecution in Johnson’s 2007 trial, after reviewing more than 30,000 pages and contacting witnesses.

State law is “crystal clear,” Keenan argued, that he must be allowed to present this evidence before a judge at a hearing.  A state law enacted last year gave prosecutors the authority to file motions to set aside convictions in cases where a person may be innocent or may have been erroneously convicted.  Once the motions are filed, judges are required by law to hold hearings to review the evidence. 

On Nov. 15, Keenan filed a motion to set aside Johnson’s judgment and hold a new trial.  Within 12 hours, St. Louis County Presiding Judge Mary Elizabeth Ott, who had appointed Keenan to review the case, denied the motion without holding a hearing. With only six working days before Johnson’s execution, Ott said the motion put the court in “untenable position.”  State law requires a hearing, Ott wrote in a Nov. 19 order, but the court “is also aware of the requirement that sufficient time for all parties to prepare and present evidence at such hearing is essential to its proper function.”

Both Keenan and Johnson’s attorneys then filed motions to stay the execution, in order to allow the St. Louis County Court time to hold an evidentiary hearing.  “The special prosecutor represents the state,” said Joseph Luby, Johnson’s attorney, at the Monday hearing.  “And at the very least, the special prosecutor’s acknowledgement of racial bias needs to be fully aired at an evidentiary hearing, and that cannot happen if the state is allowed to kill Mr. Johnson tomorrow.”  A hearing will also allow Keenan to depose McCulloch, who has not cooperated with Keenan’s investigation, Luby said.

The attorney general’s office argued Monday the Missouri Supreme Court should continue with Johnson’s scheduled execution.  “It’s a matter of undisputed fact that Kevin Johnson is guilty of first-degree murder and a fair jury determined he deserved death penalty,” said Andrew Crane, who represented the attorney general’s office.  “And the rest of what we’re talking about is just the special prosecutor’s complaints about the way Bob McCulloch charged cases.”

When Johnson was 19, he was charged with first degree murder for the killing of Sgt. William McEntee of the Kirkwood Police Department on July 5, 2005.  The first trial ended when the jury deadlocked 10-2 in favor of a conviction on the lesser offense of second degree murder.  However, a second jury convicted Johnson of first degree murder and sentenced him to death in 2007.  Johnson admitted to killing McEntee, who Johnson believed had been involved in the death of his then 12-year-old brother.

Johnson has been denied relief at every available avenue, including previous proceedings before the Missouri Supreme Court.  Crane argued the new state law was not intended to allow a circuit court judge to overturn claims of racial bias that the state’s highest court had already ruled on.  However, Keenan said there have been U.S. Supreme Court rulings since the state court reviewed Johnson’s claims that may change the outcome – including a 2019 ruling that a prosecutor’s behavior in other cases “both may and must be considered.”

On Dec. 1, 2021, Johnson asked St. Louis County Prosecuting Attorney Wesley Bell’s Conviction and Incident Review Unit, which reviews potential wrongful convictions cases, to look into possible discrimination in his case.  Johnson’s former defender is now part of Bell’s conviction review unit, creating a conflict of interest, so they asked the court to appoint a special prosecutor.

Of the five police-officer killings McCulloch prosecuted during his tenure, Kennan found that McCulloch pursued the death penalty against four Black defendants but not against the one white defendant, Trenton Forster.  Keenan also discovered an “incriminating memorandum” from the trial team’s materials, showing the prosecutors strategized in advance of the trial on ways to get Black jurors stricken by the trial judge.

Crane said Monday that the memo “tells us nothing” about what was going on in McCulloch’s mind and doesn’t change anything about Johnson’s previous appellate claims.  Crane also argued the state law doesn’t require Johnson to get a hearing before he dies.

Chris Geidner at Law Dork has effective coverage of this notable case under the headline "Missouri wants to kill Kevin Johnson regardless of pending claims that racism underlies his death sentence." Here is how this piece gets started:

Missouri wants to kill Kevin Johnson on Tuesday.

Under a state law that went into effect last year aimed at providing a means to address past flawed prosecutions and convictions, however, a special prosecutor has found “that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence.” Among other concerns, the special prosecutor found that race motivated the original prosecutor’s decision to seek the death penalty in Johnson’s case.

Nonetheless, Missouri Assistant Attorney General Andrew Crane, representing the state AG’s Office at the Missouri Supreme Court on Monday, argued that the special prosecutor’s claims couldn’t succeed under state and federal precedent and/or were irrelevant. Regardless, Crane said, the state shouldn’t have to wait on those claims to be resolved before they kill Johnson.

“The fact of the matter is that cases can be pending while an execution proceeds,” Crane told the court on Monday.

UPDATE: Late Monday night, the Missouri Supreme Court issued this per curiam opinion that begins this way:

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022.  This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson’s execution.  Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of “constitutional error” asserted by the Special Prosecutor in his motion to vacate Johnson’s conviction under section 547.031.  This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be.  Accordingly, both motions to stay Johnson’s execution are overruled.

Two of the seven Justices on the Missouri Supreme Court dissented, via a lengthy opinion authored by Justice Breckenridge that started this way:

I respectfully dissent from the principal opinion that declines to exercise the Court’s equitable power to stay Kevin Johnson’s execution to allow, as provided for in section 547.031,1 adjudication of the motion filed by the special prosecutor of St. Louis County seeking to vacate Mr. Johnson’s conviction for the racially biased decision-making of the trial prosecuting attorney.  A stay is warranted under the standard the United States Supreme Court employs, and granting a stay of execution is the only way to afford to the special prosecutor and Mr. Johnson the mandatory process section 547.031 requires in these circumstances.  The proper application of legal principles to the circumstances presented by the special prosecutor’s motion to stay Mr. Johnson’s execution should lead to the issuance of a stay of execution.

November 28, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, November 22, 2022

After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state

As reported in this local article, "Alabama Gov. Kay Ivey has ordered a halt to executions in the state after two failed attempts at lethal injections, calling for a 'top-to-bottom' review of the process."  Here is more:

The announcement came in the form of a press release sent Monday morning. According to the press release, the governor asked Alabama Attorney General Steve Marshall to withdraw the state’s two pending motions in the Alabama Supreme Court to set executions for Alan Eugene Miller and James Edward Barber.

“Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” the press release stated.

Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete. No timeline was provided. A spokesperson for the Alabama AG’s office said Marshall will ”have more to say on this at a later date.”

Miller was set to be executed on Sept. 22, but survived after prison workers couldn’t find a vein to start the intravenous line needed for the three-drug lethal injection cocktail before the death warrant expired at midnight. Kenneth Eugene Smith, who was set to die Nov. 17, experienced a similar situation and also survived after officials couldn’t start an IV.

A federal judge has ordered the ADOC must preserve evidence from both failed execution attempts.

“For the sake of the victims and their families, we’ve got to get this right. I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here,” Ivey said in the statement. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment. I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

Hamm also made a statement, which was sent alongside the governor’s. “I agree with Governor Ivey that we have to get this right for the victims’ sake. Everything is on the table – from our legal strategy in dealing with last minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.”...

The Southern Poverty Law Center, Alabama Arise, and Project Hope to Abolish the Death Penalty sent a joint statement applauding the decision. After the July execution of Joe Nathan James Jr., the groups launched a campaign called “Pull Back the Curtains” to call for transparency in the execution process.

“The ‘Pull Back The Curtains’ campaign references the fact that corrections workers are starting the execution process without public scrutiny. Every government program, especially executions, should be transparent from the start,” the groups said in a statement. “We are relieved that there will be a review, and dismayed that our state won’t simply throw out this archaic and unnecessary punishment. Among other things, at a minimum this review should assess the toll taken on corrections workers & establish PTSD support for tortured prisoners and corrections officers alike.”

November 22, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Saturday, November 19, 2022

Nebraska Supreme Court upholds constitutionality of judges imposing death sentences after jury fact-finding

I just recently saw an interesting and lengthy new ruling from the Nebraska Supreme Court rejecting an array of procedural challenges to the state's capital sentencing scheme. Here is how the unanimous 60+ page opinon in State v. Trail, 312 Neb. 843 (Neb. Nov. 10, 2022) (available here), gets started:

The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder.  He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains.  A three-judge panel sentenced the defendant to death.  The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska’s death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury.  Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court’s release of the victim’s mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct of jail staff.  We affirm.

Here are a few passages from near the end of this Trail opinion summarizing its constitutional conclusions:

In several cases, we have rejected the argument that because the right to a jury determination is limited to guilt or innocence of the crimes charged and the determination of the aggravating circumstances, Nebraska’s sentencing scheme is unconstitutional under the 6th and 14th Amendments to the U.S. Constitution and article I, §§ 3 and 6, of the Nebraska Constitution.  In State v. Gales, we explained that Apprendi and Ring do not stand for the proposition that a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522.  Rather, Apprendi and Ring affected only the narrow issue of whether there is a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital sentence is based....  By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the Nebraska Constitution.....

In State v. Mata, we rejected the defendant’s argument that a system wherein a three-judge panel weighs the aggravating and mitigating circumstances without guidance from the jury is arbitrary and capricious under the 8th and 14th Amendments.  In State v. Hessler,  we rejected the defendant’s argument under the Eighth Amendment that a sentencing panel is not in as good of a position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th Amendment arguments are somewhat different from those addressed in Mata and Hessler, he presents no reason to depart from our holdings in those cases that Nebraska’s statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, does not violate the 8th and 14th Amendments to the U.S. Constitution or article I, § 9, of the Nebraska Constitution.

November 19, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 18, 2022

Alabama unable to complete execution becuase of lethal injection difficulties

As reported in this AP piece, "Alabama’s execution of a man convicted in the 1988 murder-for-hire slaying of a preacher’s wife was called off Thursday just before the midnight deadline because state officials couldn’t find a suitable vein to inject the lethal drugs."  Here is more:

Alabama Department of Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Kenneth Eugene Smith, 57. Hamm said they established one line but were unsuccessful with a second line after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein.

“We were not able to have time to complete that, so we called off the execution,” Hamm said.

It is the second execution since September the state has canceled because of difficulties with establishing an IV line with a deadline looming.

The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m. it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening.

The postponement came after Smith’s final appeals focused on problems with intravenous lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Smith was returned to his regular cell on death row, a prison spokesperson said.

November 18, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Thursday, November 17, 2022

Oklahoma completes execution for man who killed three-year-old child nearly 30 years ago

As reported in this AP article, "Oklahoma executed a man Thursday for the torture slaying of his girlfriend’s 3-year-old son in 1993."  Here is more:

Richard Stephen Fairchild, who turned 63 on Thursday, began receiving the first of a lethal three-drug combination at 10:10 a.m. at the Oklahoma State Penitentiary in McAlester. He was declared dead at 10:24 a.m.

Fairchild, an ex-Marine, was convicted of killing Adam Broomhall after the child wet the bed. Prosecutors say Fairchild held both sides of Adam’s body against a scorching furnace, then threw him into a table. The child never regained consciousness and died later that day.

Strapped to a gurney inside the death chamber, Fairchild thanked his attorneys and prison staff and apologized to Broomhall's family. “Today's a day for Adam, justice for Adam," Fairchild said....

Michael Hurst, the slain child's uncle, said the boy would have been 34. “Our long journey for justice has finally arrived," Hurst said, adding that he was surprised to hear Fairchild express remorse for killing his nephew. “He hadn't said that in 30 years.”

Prosecutors from the Oklahoma attorney general's office had described the boy's killing as torture when they wrote to the state's Pardon and Parole Board, which voted 4-1 last month against recommending clemency for Fairchild.

Fairchild's execution was the seventh since Oklahoma resumed carrying out the death penalty in October 2021 and one of four scheduled nationwide over a two-day stretch. It was the 16th execution in the U.S. this year, including one in Texas and one in Arizona on Wednesday, up from last year’s three-decade low of 11. An execution was also scheduled for later Thursday in Alabama. Oklahoma's attorney general this summer asked the state's top criminal appeals court to set more than two dozen execution dates.

November 17, 2022 in Death Penalty Reforms | Permalink | Comments (0)

Wednesday, November 16, 2022

Texas stuggles a bit as it completes its fifth and final execution in 2022

As reported in this local article, headlined "Texas’ execution of Stephen Barbee was prolonged while officials searched for a vein," an execution in Texas tonight was a bit more of a struggle than usual. Here are the details:

Texas’ execution of Stephen Barbee Wednesday evening was prolonged while prison officials searched for a vein in the disabled man’s body, according to a prison spokesperson.

Barbee, convicted in the 2005 murders of his pregnant ex-girlfriend and her child, had severe joint deterioration which prohibited him from straightening his arms or laying them flat, according to court records. His attorney had recently tried to halt his execution because he feared the process with Barbee’s disability would result in “torture.”

But courts rejected the appeals, noting that prison officials had vowed to make special adjustments to the death chamber’s gurney to accommodate Barbee. Still, it took much more time to carry out the execution than is typical in Texas. Reporters walked into the prison around 6 p.m., signaling the execution was about to begin. But for an hour and 40 minutes, no one came back out, causing anti-death-penalty protesters outside to grow worried that something had gone wrong. It is uncommon for executions to last more than an hour. “Due to his inability to extend his arms, it took longer to ensure he had functional IV lines,” prison spokesperson Amanda Hernandez said in an email Wednesday night.

Barbee was pronounced dead at 7:35 p.m., nearly an hour and a half after he was strapped into the death chamber’s gurney, according to the prison’s execution record. Within minutes of being strapped on the gurney, an IV was inserted into his right hand, at 6:14 p.m., but it took another 35 minutes for an additional line to begin flowing in the left side of his neck. All the while, his friends watched through a glass pane adjacent to the chamber, according to a prison witness list. So did the friends of the murder victims — Lisa Underwood and her 7-year-old son Jayden — as well as Underwood’s mother....

Hours before the prisoner’s scheduled death, Barbee’s execution was paused as courts battled once again over the state’s handling of the prisoner’s religious rights in the death chamber. Federal courts this month went back and forth over Texas’ execution policy and the findings of multiple U.S. Supreme Court rulings largely requiring the state to allow prisoners’ religious advisers to audibly pray and touch them in their final moments. On Tuesday, a district judge essentially halted Barbee’s pending execution, stating Texas’ prison system can only kill the death row prisoner after creating and adopting a new execution policy that clearly lays out his final religious rights. But after the federal appellate court and the U.S. Supreme Court both ruled in favor of the state early Wednesday afternoon, Barbee’s execution was put back on track.

November 16, 2022 in Death Penalty Reforms | Permalink | Comments (4)

Arizona completes execution of man convited of committing a double murder 42 years ago

As report in this AP piece, an "Arizona man convicted of murdering two people in 1980 was put to death Wednesday in the state's third execution since officials started carrying out the death penalty in May after a nearly eight-year hiatus." Here is more:

Murray Hooper, 76, died by lethal injection at the state prison in Florence for his murder convictions in the killings of William "Pat" Redmond and his mother-in-law, Helen Phelps, at Redmond's home in Phoenix.  Redmond's wife, Marilyn, also was shot in the head during the attack but survived and testified against Hooper at his trial....

Hooper was executed within a couple hours of the U.S. Supreme Court rejecting his last-minute appeal.  Hooper's lawyers had asked the Supreme Court to review his claim that that authorities had until recently withheld that Marilyn Redmond had failed to identify him in a photo lineup.  The high court made no comment in the rejection. His appeal was brought to the high court after the Arizona Supreme Court ruled to allow Hooper's execution to proceed in October.

Authorities say the killings were carried out at the behest of a man who wanted to take over Redmond's printing business. Hooper has maintained that he is innocent for four decades and suggested he was framed for the crimes.  Kelly Culshaw, an assistant federal public defender representing Hooper, said in a statement last month that he was sentenced and convicted "based on corrupt police practices and unreliable witness testimony."...

The courts rebuffed attempts by Hooper's lawyers to postpone the execution and order fingerprint and DNA testing on evidence from the killings. But his lawyers said Hooper is innocent, that no physical evidence ties him to the killings and that testing could lead to identifying those responsible.  They say Hooper was convicted before computerized fingerprint systems and DNA testing were available in criminal cases....

Authorities say Hooper and two other men forced their way into the Redmond home on Dec. 31, 1980.  The three victims were bound, gagged, robbed and shot in the head.  Two other men, William Bracy and Edward McCall, were convicted in the killings but died before their death sentences could be carried out....

Arizona did not carry out the death penalty for nearly eight years after criticism that a 2014 execution was botched and because it encountered difficulty obtaining lethal injection drugs.  No other executions are currently scheduled in the state.  Arizona now has 110 people on death row, 22 of whom have exhausted their appeals, according to the state attorney general's office.

November 16, 2022 in Death Penalty Reforms | Permalink | Comments (1)

Latest Gallup polling highlights "Steady 55% of Americans Support Death Penalty for Murderers"

Republicans-remain-most-supportive-of-death-penaltyThe quoted portion of the title of this post is the title of this recent Gallup report on its latest polling on opinions regarding the death penalty.  Here are excerpts:

The majority of Americans, 55%, are in favor of the death penalty for convicted murderers in the U.S. While this marks the sixth consecutive year that support for capital punishment is between 54% and 56%, it is below the 60% to 80% readings recorded in the four prior decades between 1976 and 2016.

When Gallup initiated this measure in 1936, 59% of U.S. adults favored the death penalty for convicted murderers -- and majorities have supported it since then, with the exception of several readings taken between 1957 and March 1972, including the record-low 42% in 1966.

After the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it. When it was reinstated in 1976, public support for it grew until it peaked at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped to the lowest point since 1972, and today it remains at that level.

The latest findings are from an Oct. 3-20 Gallup poll that was conducted during the trial of the gunman who murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018.  On Oct. 13, the jury in the highly publicized trial spared him the death penalty and instead sentenced him to prison for the rest of his life. The decision was met with disappointment from many of the victims' families, who thought the gunman should be put to death.

Partisans' views of the death penalty differ sharply, with majorities of Republicans (77%) and independents (54%) favoring it but a majority of Democrats opposed (63%) and 35% in favor.

Since 2000, when Gallup began tracking the measure annually in its Crime survey, Republicans' support has been the most consistent. No less than 72% of Republicans have been in favor of the death penalty, and the latest reading is not statistically different from the 2000 reading of 80%.

Over the same period, independents' support has been as high as 68% and has only once fallen below the majority level (to 49% in 2020). The current reading is down 14 percentage points compared with 2000.

Democrats' support for capital punishment has not been at the majority level since 2012 and has varied the most of the three party groups, ranging from 34% to 65% since 2000. Democrats' latest reading is essentially unchanged from last year's record low for them and is 21 points lower than the 2000 reading.

November 16, 2022 in Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Monday, November 14, 2022

Three Justices dissent from the denial of cert in Ohio capital case reversed by Sixth Circuit

This morning's Supreme Court order list is most notable for a 14-page dissent from the denial of cert in a capital case from Ohio, Shoop v. Cunningham.  The dissent was authored by Justice Thomas and joined by Justices Alito and Gorsuch.  Here is how it gets started:

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler.  An Ohio jury convicted him of capital murder, and the trial court sentenced him to death.  Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson’s presence on the jury deprived Cunningham of due process — either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims’ families.  In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit’s habeas jurisdiction, I would grant Ohio’s petition and summarily reverse the judgment below.  Therefore, I respectfully dissent from denial of certiorari.

November 14, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, November 09, 2022

Texas completes its fouth execution in 2022

As reported in this local artcle, Texas "executed Tracy Beatty on Wednesday evening for murdering his mother in East Texas in 2003."  Here are some of the backstory:

Beatty, 61, was found guilty of fatally strangling Carolyn Click at the end of a violent and tumultuous relationship. Although his attorneys acknowledge Beatty killed his mother, they contended the crime didn’t qualify for the death penalty.

Lethal drugs were injected into Beatty at 6:22 p.m. Wednesday inside the state’s Huntsville Unit, and he was declared dead 17 minutes later, according to the Texas Department of Criminal Justice....

Although Beatty gave several versions of what happened in his 62-year-old mother’s death, according to court records, he ultimately told police that he came home drunk, the pair started fighting and he choked her. He said he didn’t realize Click was dead until the next day.

But Beatty was found guilty of capital murder because prosecutors argued he killed his mother during a home burglary, entering without her consent, even though he lived with Click at the time. A neighbor testified that Click had told her the day she was last seen that she had told her son that day to move out after a fight....

Beatty had been released from prison on parole months before Click’s death. Prosecutors at trial listed a slew of his previous criminal charges, including injuring a prison guard and assaulting an 18-month-old child....

Neither the Supreme Court nor Texas Gov. Greg Abbott intervened in Beatty’s execution. It was the state’s fourth execution of the year. Seven others are scheduled in Texas through September.

November 9, 2022 in Death Penalty Reforms | Permalink | Comments (0)

New DPIC analysis finds "murder rates during the pandemic were highest in states with the death penalty"

2020-Pandemic-Murder-RatesThe Death Penalty Information Center has posted this notable new review of murder data under the heading "DPIC Analysis: Pandemic Murder Rates Highest in Death Penalty States." I recoemmend the full posting, and here are excerpts (with links and the chart from the original, footnotes removed):

A DPIC analysis of 2020 U.S. homicide data has found that murder rates during the pandemic were highest in states with the death penalty and lowest in long-time abolitionist states.

DPIC reviewed the 2020 murder data compiled by the center-left think tank The Third Way for its March 2022 report, The Red State Murder Problem.  Then, taking the analysis out of the realm of politics and into the context of public policy, DPIC compared the data to states’ death-penalty status and historic usage of the death penalty.  That analysis found that pandemic murder rates generally correlated not just with the presence or absence of the death penalty in a state but with the states’ general level of death-penalty usage.

The data show that nine of the ten states with the highest pandemic murder rates — ranging from 9.9 to 20.5 murders per 10,000 residents — are death penalty states. On the other hand, eight of the eleven states with the lowest pandemic murder rates — ranging from 0.88 to 3.49 murders per 10,000 residents — had abolished the death penalty. DPIC found that the three death penalty states with the lowest pandemic murder rates — all 2.89 murders per 10,000 residents — have not carried out an execution in more than a decade, and one had a gubernatorial moratorium on executions.

Murder rates in the mostly high death-penalty usage, high pandemic-murder-rate states ranged from roughly triple to 23 times higher than in the mostly no death penalty, low pandemic-murder-rate states.

More than half of all death penalty states (14 of 27) had murder pandemic murder rates of at least 7.00 per 100,000 residents, and 30 percent (8 states) had pandemic murder rates of 10.29 per 100,000 residents or higher. By contrast, nearly two-thirds of the states that had abolished the death penalty (15 of 23) had pandemic murder rates of 5.14 or less per 100,000 residents, more than a third (8 states) had pandemic murder rates below 3.5 murders per 100,000 residents....

DPIC’s review of The Third Way pandemic murder data found that 15 of the 20 states with the highest pandemic murder rates are death penalty states, of which 12 have carried out 20 or more executions each in the past half century. Collectively, these 12 states have accounted for more than three quarters of all executions in the U.S. since the 1970s.

At the other end of the spectrum, none of the 23 states with the lowest pandemic murder rates are historically heavy users of capital punishment. Fifteen had abolished the death penalty, including nine who had not had the death penalty at any time during the 21st century.  The eight death penalty states with the lowest pandemic murder rates include two with moratoria on executions, six who have executed five or fewer people in the past half century, one that has carried out seven executions, and six who have not executed anyone in more than a decade.

Twenty U.S. states have carried out ten or more executions in the past half-century.  All of them, including three who have since abolished the death penalty, are among the 28 states with the highest pandemic murder rates.

November 9, 2022 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (4)

Monday, November 07, 2022

Are there going to be five executions in four US states over the next ten days?

The question in the title of this post is prompted by my quick look this morning at the "Upcoming Executions" page over at the Death Penalty Information Center.   That page shows that Texas has two executions scheduled, and Alabama, Arizona and Oklahoma each have one execution scheduled, between November 9 and November 17.  If all five of these executions go forward, it will be the most executions completed in the US within such a short period of time in a decade.  (In 2012, between November 6 and 15, Texas completed three executions and Ohio and Oklahoma also completed one execution.)

So many executions in a short period would be a pretty dramatic break from recent norms throughout the US.  Since roughly the start of the pandemic, the US has averaged only about one execution per month as various states have continued to have various difficulties with converting death sentences into completed executions.  Even before COVID hit, the US averaged only about two executions per month when President Trump was in office and less than four executions per month during President Obama's years in the oval office. (About seven executions per month was the national average during President Clinton's second term, and around five per month was the national norm for most of President Bush's two terms).

With all the recent political discussions about crime and crime policy, I have been a bit surprised that we have not seen a significant uptick in chatter about capital punishment polcies and practices this election season.  But it does seem we may be on the verge of an uptick in the number of executions this November.

UPDATE:  I just saw this notable new Salon commentary by Austin Sarat headlined "Crime is a hot issue, but even Republicans don't talk about the death penalty: That's good news."  I recommend the full extended piece, and here are a few excerpts:

In the past, politicians at every level responded to public concerns about crime with law-and-order campaigns in which promises to bring back or enforce the death penalty featured prominently....

Throughout the late 20th and early 21st centuries, death-penalty ballot measures have been used as tools of partisan and political advantage, largely to increase turnout among a targeted portion of the electorate in order to benefit "law and order" candidates.

But not this year.

Only in Alabama will voters be asked to decide on a death-penalty ballot measure. It would "require the governor to provide notice to the attorney general and make reasonable efforts to notify a designated family member of a victim before granting a commutation (a reduced sentence such as life imprisonment) or reprieve (temporary stay of execution) of a death sentence." ...

But in campaigns up and down the ballot, even as conservative candidates have accused their opponents of being soft on crime and promised robust anti-crime measures, Republican gubernatorial candidates in Arizona, Georgia, New York and Oklahoma have said little or nothing about the death penalty....

Whatever the verdict delivered by voters this week may be, the relative invisibility of the death penalty in this year's political campaigns is a clear sign of the progress abolitionists have made in changing the national temperature on that issue.

November 7, 2022 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Three notable dissents from denials of cert in criminal case on latest SCOTUS order list

The Supreme Court this morning released this 54-page(!) order list, and nearly 50 pages are comprised of dissents from the denial of cert by a handful of justices in five distinct cases. Here is a (too brief) accounting of the three criminal cases in this number:

In Anthony v. Louisiana, Justice Sotomayor dissents from the denial of certiorari, joined by Justice Jackson, and her 15-page dissent concludes this way:

Our criminal justice system holds prosecutors to a high standard. The prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty.” Berger, 295 U. S., at 88.  From that special role, “improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Ibid....

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial.  Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court’s refusal to issue a summary reversal.

in In Khorrami v. Arizona, Justice Gorsuch dissents from the denial of certiorari (which was not joined by Justice Kavanaugh, though he did indicate he would grant the petition).  His 10-page dissent starts and concludes this way:

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury.  On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U.S. Constitution guarantee individuals like him a trial before 12 members of the community....

For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.  In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law.  That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.  Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been.  Respectfully, we should have done just that.

In Chinn v. Shoop, Justice Jackson dissents from the denial of certiorari, joined by Justice Sotomayor, and her 2-page dissent starts and concludes this way:

This is a capital case involving a violation of Brady v. Maryland, 373 U.S. 83 (1963). There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately....

Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U.S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

November 7, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Friday, November 04, 2022

Oklahoma Gov extends execution stay for Richard Glossip as courts still consider innocence claim

As reported in this AP piece, "Oklahoma Gov. Kevin Stitt granted another temporary reprieve to death row inmate Richard Glossip, pushing his scheduled execution back until February 2023 so that an appeals court has more time to consider his claim of innocence."  Here is more:

Stitt, who is locked in a tough reelection contest, issued an executive order on Wednesday that delays Glossip’s execution, which was scheduled for Nov. 21. Stitt’s office didn’t immediately respond to a request for comment. A clemency hearing for Glossip that was scheduled before the Oklahoma Pardon and Parole Board next week also will be delayed.

Glossip received the death penalty for the 1997 murder-for-hire killing of his boss, motel owner Barry Van Treese. Prosecutors acknowledge Glossip did not kill Van Treese, but maintain that he paid the hotel maintenance man, Justin Sneed, to do it. Sneed, who received a life sentence but was spared the death penalty, was a key witness in two separate trials in which Glossip was convicted.

Attorney General John O’Connor said in a statement that he respects the governor’s decision but remains confident in Glossip’s guilt. “After 25 years, justice is still on hold for Barry Van Treese and his family,” O’Connor said. “Mr. Van Treese was in a room of the motel he owned when he was brutally murdered with a baseball bat by Justin Sneed, an individual Richard Glossip hired to work at the motel and later enlisted to commit the murder. Two different juries found Glossip guilty of murder for hire.”...

Glossip asked the Oklahoma Court of Criminal Appeals for a new evidentiary hearing following the release of an independent investigation by Houston law firm Reed Smith that raised new questions about his guilt. The firm’s report did not find any definitive proof of Glossip’s innocence, but raised concerns about lost or destroyed evidence and a detective asking leading questions to Sneed to implicate Glossip in the slaying....

A bipartisan group of 62 Oklahoma legislators, led by Republican state Rep. Kevin McDugle, have signed a request that a new evidentiary hearing be granted. Glossip, now 59, has long maintained his innocence.

He has been scheduled to be executed three separate times, only to be spared shortly before the sentence was set to be carried out. He was just hours from being executed in September 2015 when prison officials realized they had received the wrong lethal drug, a mix-up that helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

November 4, 2022 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 02, 2022

After victims's statements, Parkland shooter formally sentenced to life without parole

As detailed in this NBC News piece, headlined "Parkland school shooter sentenced to life in prison without parole after emotional victims’ statements," a high-profile sentencing was completed today in Florida. Here are some details:

Following dramatic statements from victims and victims' families, a Florida judge formally sentenced Parkland school shooter Nikolas Cruz to life in prison without parole Wednesday for the 2018 campus massacre that killed 14 students and three staff members.

Circuit Judge Elizabeth Scherer followed the jury’s recommendation to spare the 24-year-old the death penalty, instead sentencing him to a lifetime behind bars. Last month, in a 9-3 vote, a jury leaned toward sending Cruz to death row, but Florida law dictates that anything less than a unanimous vote automatically shifts the sentence to life without parole.

Prosecutors had sought the death penalty, while the defense had asked for life in prison. The jury’s decision on Oct. 13 shook family members of victims who were visibly distraught by the verdict....

Ilan Alhadeff, father of Alyssa Alhadeff, 14, who was killed in the shooting, said Wednesday during his victim impact statement, Cruz’s inevitable life sentence brings him little satisfaction. He deserved death, Alhadeff said.

“Let me show how angry and frustrated I am with the judicial system. After 4 ½ grueling years, a failed judicial system did not hand down a death sentence to the murderer of my daughter and 16 others,” he said. “Do I see this as accountability? Absolutely not. Do we now have closure? Let me be clear, absolutely not. What I see is that the system values this animal’s life over the 17 now dead. Worse, we sent a message to the next killer out there that the death penalty would not be applied to mass killing. This is wrong and needs to be fixed immediately.”

Sam Fuentes was shot in the leg and struck in the face with shrapnel during the massacre. She said Wednesday in court she watched Cruz kill two of her friends. “You shot me in the leg. If you looked me in the face, like I’m looking at you right now, you would see the scars on it from the hot shrapnel that was lodged into it. Do you remember after you sprayed my classroom with bullets, standing in the door, peering in to see the work you’ve done? Do you remember my little battered, bloody face looking back at you? I could have sworn we locked eyes,” she said....

Cruz wore a mask for the first part of the hearing, until Jennifer Guttenberg, the mother of victim Jaime Guttenberg, admonished the shooter during her victim impact statement. “You shouldn’t be sitting there with a mask on your face. It’s disrespectful to be hiding your expressions under your mask when we as the families are sitting here talking to you,” she told him.

Linda Beigel Schulman, mother of Scott Beigel, who taught geography at the school and coached cross country, said her son saved students' lives before the gunman took his. Beigel Schulman said Wednesday that Cruz has "prison justice" ahead of him. "You will spend the rest of your miserable life having to look over your shoulder worried about every single minute of your day, of your life, and scared out of your mind, fearful for someone to take you out."

On Tuesday, other survivors of the shooting and victims’ loved ones had the chance to deliver impact statements before the sentence was formally announced. Stacey Lippel, a teacher at Parkland who was shot and survived, told Cruz: “You don’t know me but you tried to kill me.” “I will have a scar on my arm and the memory of you pointing your gun at me ingrained in my brain forever,” she said before the court, looking Cruz in the eyes.

Some prior related posts:

November 2, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, October 25, 2022

Just why is it "not in the public’s best interest" for the feds to refuse to transfer to Oklahoma a prisoner scheduled for execution?

I recall a notable case from just over a decade ago in which Rhode Island was refusing to turn a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty (see story blogged here and here).   As noted here, the en banc First Circuit ultimately ruled that Rhode Island had to surrender custody of Pleau for trial on pending federal charges.  Pleau thereafter pleaded guilty to federal murder charges and avoided being sentenced to death, but not before engendering lots of interesting and notable discussion of federal and state criminal justice authority and power (see, e.g., this commentary explaining why "the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, [should be placed] back into the hands of individual states [in order] to reverse the trend toward the federalization of criminal law").

This bit of capital history, and the question in the title of this post, all came to mind when I focused on this notable recent news piece out of Oklahoma.  The story is headlined "Federal inmate set for state execution denied transfer to Oklahoma custody," and here are excerpts:

The Oklahoma attorney general is asking the U.S. Bureau of Prisons to reconsider a decision his office says could amount to unprecedented federal interference in the state’s execution process.

Federal officials have denied the state’s request to transfer federal inmate George John Hanson, known as John Fitzgerald Hanson in his Oklahoma death-sentence case. A Tulsa County jury found Hanson guilty of murdering retired Tulsa banker Mary Bowles and Owasso trucking company owner Jerald Thurman in 1999 and sentenced him to death.

Hanson, 58, is currently housed in the U.S. Penitentiary in Pollock, Louisiana, serving a life sentence plus 107 years for a series of armed robberies he committed after the murders but was convicted of and sentenced for while the state case was ongoing. He has since exhausted his appeal opportunities in Oklahoma and is slated for execution by lethal injection on Dec. 15, pending a clemency hearing Nov. 9 where Gov. Kevin Stitt could grant him mercy.

Tulsa County District Attorney Steve Kunzweiler requested the AG’s assistance after receiving a formal notice in late September of the denial that cited a reason set forward in the U.S. Code. The DA’s Office provided the Tulsa World a copy of the letter from the Bureau of Prisons.

“(The law) authorizes the Bureau of Prisons to transfer a prisoner who is wanted by a State authority to that State authority’s custody if it is appropriate, suitable, and in the public’s best interest,” the letter reads in part. “The Designation and Sentence Computation Center … has denied the request for transfer, as it is not in the public’s best interest.”

Kunzweiler balked at the vague term and said in a news release that the decision reeked of politics. In the release last week, the DA said he was “outraged” and has demanded a greater explanation. “The crimes for which Hanson is serving time in federal custody were committed after his involvement in the murders of Mary Bowles and Jerald Thurman,” he wrote. “Of what reasonable purpose is there for him to remain in federal custody — at taxpayers’ expense — when he can and should be delivered to Oklahoma authorities for the rendition of the punishment he received here?”

Kunzweiler listed several state and federal agencies from which he has sought assistance in the matter, and a spokeswoman for Oklahoma Attorney General John O’Connor said O’Connor has reached out to a Bureau of Prisons regional director “to see if he will reconsider his refusal to transfer Hanson to Oklahoma.”

The bureau’s Office of Public Affairs declined to comment for this story, stating that “based on privacy, safety, and security reasons, we do not comment on inmate’s conditions of confinement, to include transfers or reasons for transfers.”

The Tulsa World has submitted a Freedom of Information Act request to the bureau seeking an internal document that could clarify the conditions under which the decision was made.

Like the folks at the Tulsa World, I would like to hear more from the U.S. Bureau of Prisons about just why is has decided that it is "not in the public’s best interest" to allow a state to complete a seemingly lawful capital sentence.  I am not an expert on prisoner transfer protocol, but I certainly think at least some greater transparency is wholly justified here.

UPDATE I failed to see that Chris Geidner has been writing about this case on his Substack, Law Dork, including a new post with the latest breaking legal developments: 

"Oklahoma wants the feds to transfer a man in federal prison to their custody so they can kill him"

"Breaking: Oklahoma sues the Biden administration in the state's quest to kill John Hanson"

October 25, 2022 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Thursday, October 20, 2022

Oklahoma completes execution for man who killed his infant daughter 20 years ago

As reported in this extended CNN article, "Oklahoma has executed by lethal injection Benjamin Cole, who was sentenced to death for the 2002 murder of his 9-month-old daughter Brianna Victoria Cole, over the objections of defense attorneys who argued the 57-year-old suffered from schizophrenia and was severely mentally ill."  Here are some more details:

The case highlighted a longstanding issue in the debate over capital punishment: how it should apply to those who suffer from mental illness.  Meanwhile, relatives of the slain infant on Thursday decried the two-decade span between Brianna’s death and Cole’s execution.

The execution — the second of 25 Oklahoma has scheduled through 2024 — began Thursday at 10:06 a.m. CT, Oklahoma Department of Corrections Chief of Operations Justin Farris told reporters.  Cole was pronounced unconscious at 10:11 a.m. CT and pronounced dead at 10:22 a.m. CT....

Donna Daniel, Brianna’s aunt, thanked the state for carrying out the sentence and giving justice to her late niece, whom she described as a blond-haired, blue-eyed baby.  “She died a horrific death,” Daniel told reporters, adding, “And he gets off easy and gets to get a little injection in his arm and go to sleep in his death.  He did not give Brianna the chance to ever grow up, to even have her first Christmas, to meet her family.”...

Cole’s attorney called him a “person with serious mental illness whose schizophrenia and brain damage” led to him murdering his daughter, according to a statement.  By the time of his death, Cole had “slipped into a world of delusion and darkness,” the attorney, Tom Hird said, and was “often unable to interact with my colleagues and me in any meaningful way.”...

Cole is the second death row inmate put to death in the series of more than two dozen executions the state of Oklahoma intends to carry out through 2024 — a spree critics have condemned amid the state’s history of botched lethal injections.  The procedure for Cole on Thursday was “uneventful and without any complications,” Farris told reporters....

Cole’s attorneys insisted he should not be put to death because his mental condition — magnified by his exposure as a child to drugs and alcohol, substance abuse issues and physical and sexual abuse — had deteriorated so much that he was not competent to be executed, according to a clemency petition in a failed bid for mercy.

The US Supreme Court on Wednesday denied Cole’s request for a stay of execution.  Cole’s attorneys also unsuccessfully asked a state appeals court to compel the inmate’s warden to refer his case for review to the district attorney to initiate a competency hearing.

October 20, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Monday, October 17, 2022

New DPIC report: "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty"

This coming Thursday, Oklahoma is scheduled to execute Benjamin Cole for the 2002 murder of his infant daughter (though his lawyers have sought a stay from SCOTUS based on claims of incompetency).  Remarkably, Oklahoma has another 20+ executions scheduled for the next two years, with almost one execution scheduled for every month through 2024.  These plans appear to have prompted the folks at the Death Penalty Information Center to produce this big new report titled "Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty."  Here is the text of the report's conclusion:

Oklahoma is at an inflection point in its administration of the death penalty.  The state can continue executing people affected by what many Oklahomans consider a broken system or implement reforms that have been proposed by bipartisan advocates for years.  A shift away from the death penalty may even be more aligned with Oklahomans’ views on the issue, as recent surveys have shown a decline in support for the death penalty.  In addition, more than half of Oklahomans surveyed in 2015 revealed they would support abolishing capital punishment if the state replaced the death penalty with the alternative sanction of life without parole, plus restitution.

Systemic issues in the state’s use of the death penalty affect all capital defendants. However, the impact is skewed based on the race of defendant and victim, and the effects are particularly harsh on defendants of color. People of color are more likely to be victims of police misconduct and violence; they are more likely to suffer from the effects of having all-white or nearly all-white juries; and they are at greater risk of being executed if they have intellectual disabilities.  Additionally, the higher rate of death sentencing for cases involving white victims illustrates the enhanced punishment for those accused of crimes against white people that has been evident since the heyday of lynchings. Despite documented problems with the administration of Oklahoma’s death penalty, courts are largely unwilling to rectify them, leaving few options for relief.  If Oklahoma is to establish a fair and humane system of justice, it is crucial to acknowledge and redress the lingering effects of Jim Crow and racial violence on the state’s administration of the death penalty.

October 17, 2022 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (2)

Thursday, October 13, 2022

Jury recommends LWOP sentence for Parkland school shooter Nikolas Cruz

As reported in this NPR piece, a state "jury has recommended that the shooter who killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla., be sentenced to life in prison."  Here is more:

Nikolas Cruz, 24, pleaded guilty last year to 17 charges of premeditated murder and 17 counts of attempted murder. The question facing jurors now was whether Cruz would spend the rest of his life in prison or be sentenced to death. Cruz carried out the massacre on Valentine's Day in 2018. He was 19 at the time, and had been expelled from the school. He entered a school building through an unlocked side door and used an AR-15-style rifle to kill 14 students and three staff members, as well as wound 17 others.

Jurors began deliberations on Wednesday. Late that day, the jury asked to see the murder weapon. On Thursday morning, the jury said it had come to a recommendation on a sentence, about 15 minutes after the jurors were able to examine the weapon, according to The Associated Press.

Prosecutors had pushed for the death sentence. In closing arguments Tuesday, lead prosecutor Mike Satz told jurors that Cruz had hunted his victims during his siege of the school, returning to some of those he'd wounded to shoot them again, and kill them....

In laying out their defense, lawyers for Cruz presented testimony from counselors and a doctor who say the defendant suffers from a fetal alcohol spectrum disorder, a condition that they argued affects his reasoning and behavior. Witnesses testified that his birth mother, Brenda Woodard, had abused alcohol and cocaine while she was pregnant with him....

Cruz's rampage is the deadliest mass shooting to go to trial in the U.S., according to The Associated Press. In other attacks in which 17 or more people were killed, the shooter was either killed by police or died by suicide. Still awaiting trial is the suspect in the 2019 shooting of 23 people at a Walmart in El Paso, Texas.

Some prior related posts:

October 13, 2022 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Wednesday, October 12, 2022

SCOTUS seemingly split over 1983 suit timelines for high-profile Texas death row defendant claiming innocence

Rodney Reed has been on death row in Texas for over two decades based on his conviction for raping and murdering a teenager back in 1996. Reed has always maintained his innocence, but it is a procedural issue that brought his case before the Supreme Court and seemed to divide the Justices. Amy Howe's SCOTUSblog analysis of the argument, "Justices wrestle with statute of limitations in Rodney Reed’s effort to revive DNA lawsuit," provides a great review that starts this way:

The Supreme Court on Tuesday heard the case of a Texas death-row inmate seeking DNA testing for evidence that he believes will clear him. A federal appeals court threw out Rodney Reed’s federal civil rights lawsuit challenging the constitutionality of the Texas law governing DNA testing, explaining that Reed had filed his suit too late. Although several justices on Tuesday appeared ready to reject the deadline imposed by the lower court, there was no clear consensus around an alternative rule – and Reed’s lawsuit would still be too late under one of the options that the justices debated.

The full argument transcript in Reed v. Goertz is available at this link.  And here are a few press accounts of the argument:

From Law360, "Comity Takes Center Stage In High Court DNA Testing Case"

From Reuters, "U.S. Supreme Court mulls Texas death row inmate Rodney Reed's DNA testing bid"

October 12, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 11, 2022

Three Justices dissent from denial of cert in Texas capital case based on concern for ineffective counsel

The Supreme Court issued this new order list this morning.  The list includes no new grants of certiorari and lots and lots of cert denials.  One of those cert denials, in the Texas capital case of Thomas v. Lumpkin, generated this 14-page dissent by Justice Sotomayor which was joined by Justices Kagan and Jackson. Here is how this dissent gets started:

Petitioner Andre Thomas was sentenced to death for the murder of his estranged wife, their son, and her daughter from a previous relationship.  Thomas is Black, his wife was white, and their son was biracial.  Thomas was convicted and sentenced to death by an all-white jury, three of whom expressed firm opposition to interracial marriage and procreation in their written juror questionnaires.  Among other reasons, these jurors opined that such relationships were against God’s will and that people “should stay with [their] Blood Line.” App. to Pet. for Cert. 395a.  Despite their declarations of bias, Thomas’ counsel not only failed to exercise peremptory strikes on these individuals or move to strike them for cause, but failed even to question two of the three jurors about their stated bias and whether it could affect their deliberations.  Without objection from Thomas’ counsel or the State’s attorney, the three jurors were seated.  Together with nine other white jurors, they convicted and sentenced Thomas to death.

Thomas’ conviction and death sentence clearly violate the constitutional right to the effective assistance of counsel. The contrary judgment of the Fifth Circuit should be summarily reversed.

October 11, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, October 05, 2022

Texas executes John Henry Ramirez, months after SCOTUS win on RLUIPA execution claims

John Henry Ramirez earlier this year prevailed in the Supreme Court, by an 8-1 vote, with his claim that Texas was required by federal law to allow his long-time pastor be allowed to pray with him and lay hands on him during his execution.  (SCOTUS ruling discussed here.)  This evening, as reported in this AP article, that execution went forward:

A Texas death row inmate whose case redefined the role of spiritual advisers in death chambers nationwide was executed Wednesday, despite the efforts of a district attorney to stop his lethal injection.

John Henry Ramirez, 38, was executed at the state penitentiary in Huntsville. He was convicted of killing 46-year-old Pablo Castro in 2004, as he took out the trash while working at a convenience store in Corpus Christi.

In March, the U.S. Supreme Court sided with Ramirez, saying states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions.

In the execution chamber, his spiritual adviser, Dana Moore, placed his right hand on the inmate’s chest, and held it there for the duration. With his back to witnesses, Moore offered a brief prayer. “Look upon John with your grace,” he prayed. “Grant him peace. Grant all of us peace.” As Moore’s prayer ended, Ramirez responded: “Amen.”

After the prayer, Ramirez addressed five of Castro’s relatives -- including four of his children -- as they watched through a window a few feet from him. “I have regret and remorse,” he said.” This is such a heinous act. I hope this finds you comfort. If this helps you, then I am glad. I hope in some shape or form this helps you find closure.”

Ramirez expressed love to his wife, son and friends, concluding with: “Just know that I fought a good fight, and I am ready to go.”

As the lethal dose of pentobarbital took effect, he took several short breaths then began snoring. Within a minute, all movement stopped. Ramirez was pronounced dead 14 minutes later, at 6:41 p.m. CDT.

Prosecutors said Ramirez robbed Castro of $1.25 then stabbed him 29 times. Castro’s killing took place during a series of robberies conducted by Ramirez and two women following a three-day drug binge. Ramirez fled to Mexico but was arrested 3½ years later....

On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Ramirez’s death sentence to a lesser penalty. According to his attorney, Ramirez had exhausted all possible appeals and no final request to halt the execution was filed with the U.S. Supreme Court.

The lead prosecutor at Ramirez’s trial in 2008, Mark Skurka, said it was unfair that Ramirez had someone praying over him as he died when Castro didn’t have the same opportunity. “It has been a long time coming, but Pablo Castro will probably finally get the justice that his family has sought for so long, despite the legal delays,” said Skurka, who later served as Nueces County district attorney before retiring....

Ramirez’s case took another turn in April when current Nueces County District Attorney Mark Gonzalez asked a judge to withdraw the death warrant and delay the execution, saying it had been requested by mistake. Gonzalez said he considers the death penalty “unethical.”

During a nearly 20-minute Facebook live video, Gonzalez said he believes the death penalty is one of the “many things wrong with our justice system.” Gonzalez said he would not seek the death penalty while he remains in office....

Also in April, four of Castro’s children filed a motion asking that Ramirez’s execution order be left in place. “I want my father to finally have his justice as well as the peace to finally move on with my life and let this nightmare be over,” Fernando Castro, one of his sons, said in the motion....

In June, a judge declined Gonzalez’ request to withdraw Wednesday’s execution date. Last month, the Texas Court of Criminal Appeals declined to even consider the request.

Ramirez was the third inmate put to death this year in Texas and the 11th in the U.S. Two more executions are scheduled this year in Texas, both in November.

October 5, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, September 23, 2022

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

September 23, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, September 20, 2022

Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty"

Chris Geidner has this new Substack posting, titled "The Biden administration supports the death penalty," that effectively flags a notable new capital case filing by the Biden Administration's Department of Justice.  The subheadline of the piece summarizes the key points:  "Although Biden's campaign promised to 'eliminate the death penalty,' his administration told a court in a case last week that AG Merrick Garland 'has decided to continue to seek the death penalty'."  I recommend the full piece, and here are excerpts:

On Friday, Sept. 16, the US Attorney for the Southern District of New York filed a one-page notice in a pending capital case for Sayfullo Saipov, the man accused in the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more. In its key sentence, the DOJ notice stated: “We were notified today that the Attorney General has decided to continue to seek the death penalty.”...

[I]n July 2021, Attorney General Merrick Garland announced a moratorium on executions pending a review of execution procedures — echoing a DOJ policy during then-President Barrack Obama’s administration. The administration has done little since to “eliminate the death penalty,” and Garland’s decision in Saipov’s case does the opposite....

One of the people who most closely tracks the death penalty across the country, Robert Dunham, the executive director of the Death Penalty Information Center, told Law Dork that this news shows — at the least — a disconnect between the White House and Justice Department. “The Department of Justice’s pursuit of the death penalty in this case — along with the its continued defense of the death penalty in other cases on appeal — indicates that, if the White House has a policy of working to end the federal death penalty, the Department of Justice certainly isn’t acting on it,” Dunham told Law Dork.

Garland — in cases involving Dzhokhar Tsarnaev’s 2013 Boston Marathon bombing death sentence and Dylann Roof’s death sentence for 2015 murder of nine Black people at a Charleston church — has supported previously issued death sentences in court, but Saipov’s case would be the first trial of the Biden administration where the federal government is seeking to impose a new death sentence.

To be clear, Garland did not initially make the decision to seek death in this case. That was done in the Trump administration, under then-Attorney General Jeff Sessions. But, in the aftermath of Biden’s election and Garland’s execution moratorium, there was a request from Saipov that DOJ withdraw its intent to seek the death penalty in his case.

September 20, 2022 in Criminal justice in the Biden Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Sunday, September 18, 2022

Notable developments as defense rests in capital trial of Parkland school shooter

I have been following the capital sentencing trial of Parkland school shooter Nikolas Cruz somewhat more closely than I follow other capital trials in part because the case involves such competing extremes.  This case is the deadliest U.S. mass shooting to ever reach trial, involves no question about guilt and the 17 victims were mostly students with many as young as 14.  And yet Nikolas Cruz's defense team has presented a considerable mitigation case highlighting his damaged upbringing and considerable mental health issues.

The Cruz defense team rested its case in mitigation last week sooner than had been expected, and that led to a reaction by the presiding trial judge which has now produced a defense motion to remove the judge.   Here are some headlines and ledes from a few stories covering these latest developments:

"Parkland school shooter's defense team demands judge be removed after heated exchange"

The attorneys representing the Parkland school shooter filed a motion Friday asking for the judge overseeing his sentencing trial to be replaced.  The motion comes after the judge and the defense attorneys had an unusually heated exchange on Wednesday, in which the judge accused the attorneys of a lack of professionalism.

The motion alleges that Circuit Judge Elizabeth Scherer's conduct during the Wednesday exchange revealed "long-held" animosity toward the defense counsel that has "infected" the proceedings and will prevent their client from getting a fair trial.

"Parkland defense has convinced some that killer deserves mercy"

The sudden end of the defense case in the Parkland mass shooting trial this week drew criticism of and from the presiding judge, temporarily overshadowing the biggest question at issue — was enough evidence presented to convince a jury to spare the defendant’s life?

It’s impossible to say for sure — juries are notoriously unpredictable.  But at least one expert, and some trial observers, say they would not be surprised if the jury in the Marjory Stoneman Douglas mass shooting case were to show mercy toward confessed gunman Nikolas Cruz.

Some prior related posts:

September 18, 2022 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, September 15, 2022

"Where Black Lives Matter Less: Understanding the Impact of Black Victims on Sentencing Outcomes in Texas Capital Murder Cases from 1973 to 2018"

The title of this post is the title of this recent article published in the Saint Louis University Law Journal authored by Jelani Jefferson Exum and David Niven.  Here is part of its abstract:

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders.  It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks.  This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty.  However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty.  Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent.  This is not simply a failure to recognize the value of Black lives — as the Black Lives Matter movement exposes — but a reflection of the societal view that Blackness actually reduces the value and importance of all things — from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death.  When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring.  This data shows how pervasive race is in death penalty outcomes.  In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less.  The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature.  The details differ from case to case, but across all those thousands of cases the race of victim disparity persists.  The math is straightforward.  Indeed, the odds against the patterns seen here — emerging by chance — are truly astronomical.  The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain.  When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty.  Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach.  We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just.  To do otherwise is to perpetuate a system where Black lives matter less.

September 15, 2022 in Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, September 14, 2022

"'Take the Motherless Children off the Street': Fetal Alcohol Syndrome and the Criminal Justice System"

The title of this post is the title of this new article authored by Michael Perlin and Heather Cucolo now available via SSRN. Here is its abstract:

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty.  Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system.  We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel.  Next, we will discuss how the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty.  We look carefully at the way that courts all too often dismiss effectiveness-of-counsel claims in such cases, and the implications of this case law.

Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence, and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation.

This article strikes me as especially timely given that the capital defense of Nikolas Cruz, the Parkland school shooter, has been particularly focused on FASD.  This new article, headlined "Nikolas Cruz trial: FASD expert has ‘never seen’ pregnant woman abuse alcohol as much as shooter’s mother," provides a partial account of the evidence being developed during his on-going capital sentencing proceeding.

September 14, 2022 in Death Penalty Reforms, Offender Characteristics, Who Sentences | Permalink | Comments (2)

Tuesday, September 13, 2022

Is Alabama going to pioneer using nitrogen as a method of execution soon?

The question in the title of this post is prompted by this new AP article headlined "State: Alabama nearly ready with untried execution method."  Here are the details:

Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for Sept. 22, if the judge blocks the use of lethal injection.  Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but has never used by a state.  The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection.  Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection.  The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form.

Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court.  He noted the “high stakes” involved with a looming execution date, but did not immediately rule on the request to block the lethal injection.  When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method.  Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker....

Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said....

Alabama told a federal judge last year that it has finished construction of a “system” to put condemned inmates to death using nitrogen gas, but did not give an estimate of when it would be put to use.  Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said.

Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia.  She said Miller should be treated the same.

The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller’s attorney said the state presented the gas mask during a deposition and that Miller was understandably upset.

Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.

Long-time readers likely know that nitrogen gas has long been discusses as a possible alternative execution method to lethal injection.  Just some of many prior posts on the topic are noted below:

September 13, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, September 06, 2022

South Carolina state judge declares execution by firing squad and electric chair to be unconstitutional

As reported in this AP piece, a "South Carolina judge ruled Tuesday that the state's newly created execution firing squad, as well as its use of the electric chair, are unconstitutional, siding with four death row inmates in a decision sure to be swiftly appealed as the state struggles to implement its new execution protocols." Here is more:

“In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die," Judge Jocelyn Newman wrote in a case brought by the inmates against the state. "In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

Last month, Newman heard arguments from lawyers for four men on the state's death row, who said that the prisoners would feel terrible pain whether their bodies were “cooking” by electricity or heart stopped by a marksman’s bullet — assuming they are on target.

Attorneys for the state countered with their own experts who said death by the yet-to-be-used firing squad or the rarely used electric chair would be instantaneous and the condemned would not feel any pain. The state Supreme Court had ordered Newman to issue her decision within 30 days, with further appeals all but certain. Officials with the state Corrections Department told The Associated Press on Tuesday that the agency was “assessing the ruling.”

From 1995 to 2011 — when the state’s last execution was performed — South Carolina carried out the death penalty with lethal injections on 36 prisoners. But, as the state’s supply of lethal injection drugs expired in 2013, an involuntary pause in executions resulted from pharmaceutical companies' refusal to sell the state more. Condemned inmates technically had the choice between injection and electrocution, meaning that opting for the former would in essence leave the state unable to carry out the sentence.

Prison officials sought help from state lawmakers, who for several years had considered adding the firing squad as an option to approved methods, but debate never advanced. Last year, Democratic Sen. Dick Harpootlian and GOP Sen. Greg Hembree, both of whom previously served as prosecutors, again argued in favor of adding the firing squad option....

The ultimately approved measure, signed into law by Republican Gov. Henry McMaster last year, made South Carolina the fourth state in the country to allow use of a firing squad, and made the state's electric chair — built in 1912 — the default method for executions, thereby giving prisoners a new choice.

During last month's trial, a Corrections Department official said he devised the firing squad protocols after consulting a prison official in Utah, location of the only three inmates to die by firing squad since 1977. Colie Rushton, the department’s security director, testified the .308 Winchester ammunition to be used is designed to fragment and split up in the heart to make death as fast as possible. Much of the rest of the trial was each side calling its own experts to detail whether inmates feel any pain before they die.

In her ruling, Newman relied on this testimony, including two physicians who said that an inmate “is likely to be conscious for a minimum of ten seconds after impact.” During that time, the judge wrote, “he will feel excruciating pain resulting from the gunshot wounds and broken bones,” sensation that “constitutes torture” as it is “exacerbated by any movement he makes, such as flinching or breathing.”

September 6, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, September 05, 2022

"Condemning Those with Multiple Disabilities to Die: Dual Diagnosis of Substance Abuse and Intellectual Disability in Capital Sentencing Proceedings"

The title of this post is the title of this new article authored by Aliya Sternstein and John R. Mills now available via SSRN.  Here is its abstract:

While the execution of defendants who score significantly low on intelligence tests, struggle to adapt their behavior to their environment, and experience these deficits during the developmental years is unconstitutional -- some courts have imposed or upheld death sentences because they find the defendant also has a drug addiction.

These courts misread the no longer used technical phrase “related to” in the above medical criteria for an intellectual disability (ID) diagnosis.  The criteria stated that shortfalls in adaptive behavior must be “related to” low intellectual functioning.  The long-settled medical community consensus is that there is no requirement to identify the psychological causes of these adaptive deficits.  But the misinformed courts have improperly held that related to means “caused by” instead of “co-existing with,” requiring proof of a negative: that the accused’s deficits in behavior are not caused by a substance use disorder.  This legal and medical error is common in some jurisdictions.  That is so, even in light of U.S. Supreme Court instructions to be informed by the medical consensus when assessing ID.

Although a great deal has been written about the exemption of those with ID from execution, little legal scholarship has addressed the intersection of substance abuse, Supreme Court reliance on the medical consensus in death eligibility decisions, and a misunderstanding or disregard of the consensus that addiction may and often do co-exist with ID.  Limited social skills and a self-perception of being different from others can foster loneliness and an urge to fit in that defendants with ID overcome by abusing drugs and alcohol.  The high Court has explicitly recognized the same: because people with ID often have other psychological impairments, the “existence of a personality disorder or mental-health issue, in short, is not evidence that a person does not also have intellectual disability.”

Judges and jurors perhaps deny protection to defendants with addictions and ID because of a misperception that those with substance use disorders are more blameworthy for their plight than defendants with additional psychological disorders or those with only ID.  But neither the medical consensus nor the Supreme Court has ever suggested that addiction changes the level of culpability of an offender with ID.  Quite the opposite: ID may heighten the risk of developing a substance use disorder.

This paper makes the straightforward case that a defendant, who otherwise meets the ID criteria, cannot be excluded from the constitutional prohibition on executing those with ID simply because of a dual diagnosis of substance abuse. Accordingly, courts must not require a defendant asserting ineligibility for execution to show that their deficits in adaptive behavior are “related to” an intellectual impairment and not related to substance abuse or some other psychological impairment.

September 5, 2022 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)