Friday, February 16, 2024

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

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

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

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

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

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

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

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

February 16, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (16)

Monday, February 05, 2024

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

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

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

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

February 5, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Sunday, February 04, 2024

First capital child rape charge under new Florida law results in LWOP plea and sentence

Nearly a year ago, Florida enacted a new law making certain child rapes a capital offense, and I asked in this post: "With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?".  Two months ago, as detailed in this  post, Florida prosecutors filed court documents stating its intent to seek the death penalty against Joseph Andrew Giampa after he was indicted on multiple counts of sexual battery on a child under age 12. 

I reacted to this potentially historic capital case by speculating about the possibility of a plea deal to take the death penalty off the table, wondering in particular if prosecutors would agree to such a deal.  This local article reports that such a plea deal was made, and an LWOP sentence was entered last week:

A Leesburg man has been sentenced to life in prison for forcing a young girl to engage in sexual acts.

Joseph Andrew Giampa, 36, through his defense attorney, conveyed an offer to serve the rest of his natural life in prison.  At the request of the victim’s family and with the interests of the child victim in mind, the Fifth Judicial Circuit State Attorney’s Office agreed to this resolution.  Under this agreement, Giampa will spend the remainder of his life in prison without the possibility of parole.

“Resolution in less than 100 days is proof that Florida’s capital punishment statute for sexual battery of children is effective,” commented Fifth Judicial Circuit State Attorney Bill Gladson.  “By passing this law, the Florida legislature and the governor have sent a message that Florida has zero tolerance for those who prey upon our most vulnerable and that the punishment will be certain, swift and severe.”

Last year, investigators found a video on Giampa’s laptop of a female juvenile victim being recorded by an adult man, later identified as Giampa, holding the camera and talking to her.... 

Giampa was indicted by a grand jury in December 2023 for six counts of sexual battery upon a person under 12 years of age and three counts of promoting a sexual performance by a child.  Shortly after Giampa was indicted, Gladson filed a notice of intent to seek the death penalty in the case pursuant to Florida Statutes 794.011(2)(a) and 921.1425, both of which pertain to the death penalty regarding sexual battery as a capital felony.

I am not too surprised that this case was resolved through an LWOP plea deal, which is not uncommon in capital cases when there is no dispute over guilt.  I am also not surprised that the victim’s family here was eager to have this case resolved through a plea deal rather than risk having the young rape victim grow up with her rape and rapist the center of legal appeals and debates for years.  So now we are back to waiting and wondering when and how Florida will secure a child rape death sentence that could provide an opportunity for SCOTUS to reconsider its Kennedy ruling that such a sentence violates the Eighth Amendment.

Prior related post:

February 4, 2024 in Death Penalty Reforms, Kennedy child rape case, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (22)

Friday, February 02, 2024

Rounding up some continuing discussions a week after Alabama's nitrogen gas execution

Unsuprisingly, conversations and debates over Alabama's pioneering next execution method are continuing a week after that state used nitrogen gas to carry out a death sentence for a murder committed over 35 years ago.  Here is an abridged round-up of some of the recent pieces that have caught my eye:

From the AP, "Oklahoma governor says he’s not interested in changing from lethal injection to nitrogen executions"

From the Louisiana Illuminator, "Landry wants Louisiana to resume executions, fulfill ‘contractual obligations’ with victims’ families"

From the New York Times, "A Select Few Witnessed Alabama’s Nitrogen Execution. This Is What They Saw."

From Slate, "'It Was the Most Violent Thing I’ve Ever Seen': Inside the chamber for Alabama’s experimental new execution technique."

From the Statehouse News Bureau, "Opponents of nitrogen executions bill cite Ohio's ban on gas for pet euthanasia"

February 2, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (16)

Wednesday, January 31, 2024

"Death Is Disparate"

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

The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial.  But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts.

This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to aggravating evidence offered by the prosecution when making the case for death.  In exploring this possibility, the Article draws attention to a crucial yet heretofore unexplored dynamic of capital sentencing trials.  Even if aggravation is expanded under a doctrine of adversarial parity, the defense’s evidentiary burden will always be substantially more onerous than the prosecution’s, with the case in mitigation delving into the defendant’s full biopsychosocial history across life.  Death is not only different.  It is also disparate. This Article thinks through some constitutional implications of death’s disparity, offering a new framework for reconceptualizing key tensions in the troubled evolution of Eighth Amendment capital trial doctrine.

January 31, 2024 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, January 30, 2024

Ohio becomes first state to have bill introduced for nitrogen gas executions after Alabama's success

As reported in this AP article, "Ohio’s Republican attorney general put his weight behind a legislative effort Tuesday to bring nitrogen gas executions to the state, joining what could be a national movement in pro-death penalty states to expand capital punishment on the heels of Alabama’s first use of the method last week." Here is more:

Attorney General Dave Yost said adding nitrogen gas as an execution alternative in Ohio could end an unofficial death penalty moratorium that Republican Gov. Mike DeWine declared in 2020.  The governor said at the time that lethal injection was “no longer an option” for Ohio because of difficulties finding drugs and repercussions the state could face from drugmakers if one of their pharmaceuticals was used in an execution.  The state’s last execution was in 2018.  “Saying that the law of Ohio should be thwarted because pharmaceutical companies don’t want to sell the chemicals is an abdication of the sovereignty of the state of Ohio, which still has this law on the books,” Yost said.

He was joined at a Tuesday news conference by Republican state Reps. Brian Stewart and Phil Plummer, who introduced a bill Tuesday to add the new method. Alabama used it for the first time Thursday, when convicted murderer Kenneth Eugene Smith, 58, was put to death with nitrogen gas administered through a face mask to deprive him of oxygen.... The Ohio bill would give condemned inmates a choice between lethal injection and nitrogen gas but would require their executions to go forward with nitrogen gas if lethal injection drugs are not available, Stewart said....  

Yost said nitrogen gas is abundant and would be easy for the state to procure from the private sector.  At least one private company, industrial gas distributor Airgas, has announced its opposition to supplying nitrogen for executions. Yost, a former prosecutor and potential 2026 gubernatorial contender, said he is not concerned that the method has been used only once and that Smith appeared to struggle for several minutes as he died....

Plummer, a former county sheriff, said lengthy delays are defeating part of the purpose of Ohio’s death penalty law: “We need some closure for the victims in cases like these ones.”  Stewart criticized DeWine for delaying so many executions over pharmaceutical companies’ unwillingness to see their products used to put people to death.  He noted that Florida and the federal government have continued administering lethal injections while Ohio’s unofficial pause has been in place.  Yost noted that the federal government had a stockpile of drugs, putting it in a potentially different position than Ohio.

Ohio’s last execution was on July 18, 2018, when Robert Van Hook was put to death by lethal injection for killing a man he met in a Cincinnati bar in 1985.  His was the 56th execution since 1999.  Amid the unofficial moratorium, bipartisan groups of lawmakers have repeatedly pushed bills to eliminate the state’s death penalty, including one this session....

DeWine’s spokesman, Dan Tierney, said the governor typically does not comment on pending legislation.  Tierney noted that no death penalty-related legislation, whether for or against, has moved in recent years. 

Ohio has 118 men and one woman on death row, according to the most recent state report.

A few recent related posts:

January 30, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (34)

Monday, January 29, 2024

"Will other states replicate Alabama’s nitrogen execution?"

The question in the title of this post is the headline of this lengthy AP article.  I think an important related question in whether a new execution method might enable more states to increase the pace of executions (which have averaged less than two per month nationwide over the last decade after averaging double or triple that rate in prior decades).  Here are some excerpts from the AP piece:

Alabama’s first-ever use of nitrogen gas for an execution could gain traction among other states and change how the death penalty is carried out in the United States, much like lethal injection did more than 40 years ago, according to experts on capital punishment.

Alabama Attorney General Steve Marshall said Friday that the execution of Kenneth Eugene Smith, a 58-year-old convicted of a 1988 murder-for-hire, went off as planned and his office is ready to help other states if they want to begin nitrogen executions. “Alabama has done it, and now so can you,” Marshall said at a news conference.

At least some prison officials in other states say they hope to closely analyze how the process worked in Alabama and whether to replicate it in their states. Oklahoma and Mississippi already have laws authorizing the use of nitrogen gas for executions, and some other states, including Nebraska, have introduced measures this year to add it as an option. “Our intentions are if this works and it’s humane and we can, absolutely we’ll want to use it,” said Steven Harpe, director of Oklahoma’s prison system....

Oklahoma was the first state to contemplate the use of nitrogen gas nearly a decade ago after the 2014 botched execution of Clayton Lockett who clenched his teeth, moaned and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off before Lockett died, 43 minutes after the procedure began. A later investigation revealed the IV had become dislodged and the lethal chemicals were pumped into the tissue surrounding the injection site instead of into his bloodstream.

Numerous other states, including Alabama, have had problems for years administering lethal injection or obtaining the deadly drugs, particularly as manufacturers, many of them based in Europe, have objected to their drugs being used to kill people and prohibited their sale to corrections departments or stopped manufacturing them altogether.  Even as some death penalty states remain committed to pursuing the executions, capital punishment is undergoing a yearslong decline of use and support, and more Americans now believe the death penalty is being administered unfairly, according to a recent annual report.

A few recent related posts:

January 29, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (7)

Friday, January 26, 2024

Will other states move to nitrogen after Alabama's pioneering success with new execution method?

The question in the title of this post is was my first question in the wake of last night's newa that Alabama carried out an historic first execution using nitrogen gas.  This New York Times article provides this account of the execution and what it could mean:

Alabama carried out the first American execution using nitrogen gas on Thursday evening, killing a convicted murderer whose jury had voted to spare his life and opening a new frontier in how states execute death row prisoners.

The execution of the condemned prisoner, Kenneth Smith, 58, began at 7:53 p.m. Central time, and he was pronounced dead at 8:25 p.m. in an execution chamber in Atmore, Ala., according to John Q. Hamm, the state prison system’s commissioner.  The U.S. Supreme Court allowed the execution to move forward over the objections of its three liberal justices and concerns from death penalty opponents that the untested method could cause Mr. Smith to suffer.

Mr. Smith, who was strapped to a gurney with a mask placed on his head, appeared conscious for several minutes after the nitrogen gas started flowing into the mask, depriving him of oxygen, according to a pool report from five Alabama journalists who witnessed the execution.  State lawyers had previously claimed in court filings that an execution by nitrogen would ensure “unconsciousness in seconds.”  He then “shook and writhed” for at least two minutes before beginning to breathe heavily for several minutes.  Eventually, the journalists said, his breathing slowed until it was no longer apparent.

Mr. Hamm said it looked like Mr. Smith had tried to hold his breath as long as he could, and he downplayed Mr. Smith’s body movements, saying “nothing was out of the ordinary from what we were expecting.”...

Lee Hedgepeth, a reporter in Alabama who witnessed the execution, said Mr. Smith’s head moved back and forth violently in the minutes after the execution began. “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution,” Mr. Hedgepeth said.

Mr. Smith was one of three men convicted in the 1988 murder of Elizabeth Sennett, whose husband, a pastor, had recruited them to kill her.

It was the second time Alabama had tried to kill Mr. Smith, after a failed lethal injection in November 2022 in which executioners could not find a suitable vein before his death warrant expired.  Mr. Smith’s lawyers and the state’s attorney general, Steve Marshall, said Thursday’s execution was the first that had been carried out by nitrogen anywhere in the world.

Other states have looked to Alabama’s experience as they face mounting problems obtaining lethal injection drugs because of pressure from medical groups, activists and lawyers.  Mississippi and Oklahoma have authorized their prisons to carry out executions by nitrogen hypoxia, as the method is known, if they cannot use lethal injection, though they have never tried to do so. “Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood,” Mr. Marshall said, suggesting that the availability of an “efficient” execution method could act as a deterrent to criminals.

The Supreme Court’s order allowing the execution to go forward did not give an explanation, as is often the case when the justices decide on emergency applications.  The court’s three liberal members disagreed with the majority’s decision.

In a strongly worded dissent, Justice Sonia Sotomayor voiced concerns about Alabama’s new method. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote. “The world is watching.”

Justice Elena Kagan, a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would pause the execution to give the court time to examine the “exceptional circumstances” surrounding Alabama’s new method of execution and Mr. Smith’s challenges.

The dissents from Justices Sotomayor and Kagan are available at this link.   In addition to "the world" watching, states have surely been watching this case closely.  That lower courts, and ultimately the Supreme Court, refused to interfere with this novel execution method likely will lead some some state legislators and prison officials to consider more seriously about nitrogen gas as a means of carrying out a death sentence.

At the same time, defendants facing execution by means of lethal injection might just prod states to adopt this new execution method.  In some states, defendants have contested lethal injection execution protocols by arguing that nitrogen gas would provide a more humane means to execute.  After this Alabama execution, such arguments may now be somewhat more forceful and may make some states even more likely to adopt nitrogen gas execution protocols.

January 26, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (45)

Wednesday, January 24, 2024

Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution

As reported in this new New York Times piece, the "U.S. Supreme Court and a federal appeals court each declined on Wednesday to intervene to stop Alabama from conducting the nation’s first-ever execution by nitrogen gas, putting the state on track to use the novel method to kill a death row prisoner."  Here is more on today's rulings:

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022.  Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments.  The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case.  Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers contend that the method — known as nitrogen hypoxia — is painless and will quickly cause Mr. Smith to lose consciousness before he dies.

But Mr. Smith and his lawyers have said they fear the state’s newly created protocol is not sufficient to prevent problems that could cause Mr. Smith severe suffering.  The lawyers said in court papers that if the mask were a poor fit, it could allow oxygen in and prolong Mr. Smith’s suffering, or if he becomes nauseous, he could be “left to choke on his own vomit.”

The execution is scheduled to take place around 6 p.m. Central time at the William C. Holman Correctional Facility, though it could be carried out any time until 6 a.m. the next morning.

A few prior related posts:

January 24, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (28)

Monday, January 22, 2024

Supreme Court grants cert to take another look at capital case of Richard Glossip

Almost exactly nine years ago, on January 23, 2015 to be precise, the Supreme Court granted certiorari in Glossip v. Gross to consider whether Oklahoma's execution methods complied with the Eighth Amendment.  The Supreme Court's ruling for the state in the 2015 version of Glossip did not fully resolve execution jurisprudence, and it also did not lead to Oklahoma executing Richard Glossip.  Nearly a decade later, as detailed in this new SCOTUS order list, the Supreme Court is going to take a look at the substance of Glossip's capital conviction and sentence in a case now titled Glossip v. Oklahoma.

The Glossip cert petition this time around presented this set of questions:

1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

Intriguingly, the SCOTUS cert grant today adds a question (and suggests it could be down one Justice for the case):

In addition to the questions presented, the parties are directed to brief and argue the following question: Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment. Justice Gorsuch took no part in the consideration or decision of this motion and this petition.

January 22, 2024 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Sunday, January 21, 2024

Is Alabama going to be able to go forward with an historic execution this week?

Alabama has an execution scheduled for January 25 that would be historic in two ways: (1) it would be the first execution using nitrogen gas, and (2) it would be the first modern execution of a conemned prisoner whose execution failed in a previous attempt.  Though Kenneth Eugene Smith is continuing to litigate in a effort to preclude his unique execution, I am (not-too-confidently) expecting his execution will go forward.  Here is an abridged round-up of press pieces about this scheduled execution:

From the AP, "Alabama plans to carry out first nitrogen gas execution. How will it work and what are the risks?"

From CBS News, "Alabama readies never-before-used execution method that some veterinarians won't even use for pets"

From Courthouse News Service, "Federal panel hears appeal of pending nitrogen hypoxia execution"

From Fox News, "Minister attending nitrogen gas execution of Alabama prisoner asks state for extra safety precautions"

From The Marshall Project, "Vomiting, Seizures, Stroke: What Could Happen in the First Nitrogen Execution in the U.S."

From Popular Mechanics, "This Man Survived One Execution. Now, Alabama Will Try to Kill Him Again—With Nitrogen Gas."

January 21, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9)

Wednesday, January 17, 2024

Feds reportedly to allow Colorado nightclub mass murderer to plead guilty to avoid capital charges

As reported in this new AP piece, a "shooter who killed five people and endangered the lives of over 40 others at an LGBTQ+ nightclub in Colorado Springs plans to plead guilty to new federal charges for hate crimes and firearm violations under an agreement that would allow the defendant to avoid the death penalty, according to court documents made public Tuesday." Here is more:

Anderson Aldrich, 23, made a deal with prosecutors to plead guilty to 50 hate crime charges and 24 firearm violations, the documents show. Aldrich would get multiple life sentences in addition to a 190-year sentence under the proposed agreement, which needs a judge’s approval....

Aldrich was sentenced to life in prison last June after pleading guilty to state charges of murder and 46 counts of attempted murder — one for each person at Club Q during the attack on Nov. 19, 2022.

Word of the new charges and planned agreement come just days after federal prosecutors revealed they would seek the death penalty in another hate crime case — against a white supremacist who killed 10 Black people at a supermarket in Buffalo, New York....

Aldrich, who is nonbinary and uses they/them pronouns, also pleaded no contest to state charges for hate crimes under a plea agreement. The plea was an acknowledgment there was a good chance Aldrich would be convicted of those crimes without admitting guilt. The pleas carried the same weight as a conviction....

At the time of Aldrich’s sentencing in state court, Colorado Springs area District Attorney Michael Allen said the possibility of receiving the death penalty in the federal system was a “big part of what motivated the defendant” to plead guilty to the state charges....

Aldrich declined to speak at the sentencing hearing in state court, and haven’t said why they hung out at the club, then went outside and returned dressed in body armor. Aldrich began firing an AR-15-style rifle as soon as they came back in. Prosecutors say Aldrich had visited the club at least six times before that night and that Aldrich’s mother had forced them to go.

In a series of telephone calls from jail, Aldrich told The Associated Press they were on a “very large plethora of drugs” and abusing steroids at the time of the attack. When asked whether the attack was motivated by hate, Aldrich said that was “completely off base.” The district attorney called those statements self-serving and characterized the assertion as ringing hollow. He said Aldrich’s claim of being nonbinary is part of an effort to avoid hate crime charges, saying there was no evidence of Aldrich identifying as nonbinary before the shooting.

During hearings in the state case in February, prosecutors said Aldrich administered a website that posted a “neo-Nazi white supremacist” shooting training video. A police detective also testified that online gaming friends said Aldrich expressed hatred for the police, LBGTQ+ people and minorities, and used racist and homophobic slurs. One said that Aldrich sent an online message with a photo of a rifle trained on a gay pride parade....

The 2022 attack came more than a year after Aldrich was arrested for threatening their grandparents and vowing to become “the next mass killer ″ while stockpiling weapons, body armor and bomb-making materials. Those charges were eventually dismissed after Aldrich’s mother and grandparents refused to cooperate with prosecutors.

January 17, 2024 in Death Penalty Reforms, Offense Characteristics, Who Sentences | Permalink | Comments (12)

Friday, January 12, 2024

Feds officially announce decision to pursue death penalty for racist mass murderer in Buffalo

As reported in this AP article, "Federal prosecutors will seek the death penalty against a white supremacist who killed 10 Black people at a Buffalo supermarket, they said in a court filing Friday." Here is more about the decision and some context for a widely-watched case:

Payton Gendron, 20, is already serving a sentence of life in prison with no chance of parole after he pleaded guilty to state charges of murder and hate-motivated domestic terrorism in the 2022 attack. New York does not have capital punishment, but the Justice Department had the option of seeking the death penalty in a separate federal hate crimes case. Gendron had promised to plead guilty in that case if prosecutors agreed not to seek the death penalty.

In a notice announcing the decision to seek the death penalty, Trini Ross, the U.S. attorney for western New York, wrote that Gendron had selected the supermarket “in order to maximize the number of Black victims.” The notice cited a rage of factors for the decision, including the substantial planning leading to the shooting and the decision to target at least one victim who was “particularly vulnerable due to old age and infirmity.”

Relatives of the victims had expressed mixed views on whether they thought federal prosecutors should pursue the death penalty....

The Justice Department has made federal death penalty cases a rarity since the election of President Joe Biden, a Democrat who opposes capital punishment. This is the first time Attorney General Merrick Garland has authorized a new pursuit of the death penalty. Under his leadership, the Justice Department has permitted the continuation of two capital prosecutions and withdrawn from pursuing death in more than two dozen cases. Garland instituted a moratorium on federal executions in 2021 pending a review of procedures. Although the moratorium does not prevent prosecutors from seeking death sentences, the Justice Department has done so sparingly.

It successfully sought the death penalty for a antisemitic gunman who murdered 11 people at a Pittsburgh synagogue, which had been authorized as a death penalty case before Garland became attorney general. It also went ahead last year with an effort to get the death sentence against an Islamic extremist who killed eight people on a New York City bike path, though a lack of a unanimous jury meant that prosecution resulted in a life sentence. The Justice Department has declined to pursue the death penalty in other mass killings. It passed on seeking the execution of a gunman who killed 23 people at a Walmart in El Paso, Texas.

On May 14, 2022, Gendron attacked shoppers and workers with a semi-automatic rifle at a Tops Friendly Market in Buffalo after driving more than 200 miles (320 kilometers) from his home in rural Conklin, New York. He chose the business for its location in a predominantly Black neighborhood and livestreamed the massacre from a camera attached to his tactical helmet.

The dead, who ranged in age from 32 to 86, included eight customers, the store security guard and a church deacon who drove shoppers to and from the store with their groceries. Three people were wounded but survived. The rifle Gendron fired was marked with racial slurs and phrases including “The Great Replacement,” a reference to a conspiracy theory that there’s a plot to diminish the influence of white people.

Prior related posts:

January 12, 2024 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Wednesday, January 10, 2024

Federal district judge concludes condemned has not shown Alabama's nitrogen gas execution protocol is constitutionally infirm

As reported in this Reuters article, a "federal judge ruled on Wednesday that Alabama can proceed later this month with the first execution by nitrogen gas asphyxiation, saying that the condemned prisoner was unlikely to show the new method amounts to cruel or unusual punishment." Here is more:

Kenneth Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on Jan. 25 using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen....

Judge R. Austin Huffaker of the U.S. District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed. "Smith is not guaranteed a painless death," Huffaker wrote in his opinion, citing a U.S. Supreme Court precedent. He wrote that Smith "has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain."

Smith, 58, is one of two people alive in the U.S. to have survived a judicial execution attempt: Alabama botched his previously scheduled execution by lethal injection in November 2022 when multiple attempts to insert an intravenous line failed. Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.

The full 48-page opinion is available at this link, and here is part of a key final section of the court's discussion:

So, it is Smith’s burden to show a substantial likelihood that he will succeed on his Eighth Amendment claim before the court will enjoin his execution to allow him to litigate his challenge, and for good reason.  The status quo here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using the ADOC’s current Protocol.  Courts presume, based upon the history and development of capital punishment in this country and the legislative process, that the Defendants do not “seek[] to superadd terror, pain, or disgrace to their executions” unless and until a condemned person can make the requisite showing under Baze and GlossipBucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).

Considering all the evidence presented and the parties’ arguments, Smith has not met that burden.  His evidence and allegations amount to speculation, at best “scientific controvers[y,]” well short “of showing that the method creates an unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884.  As in Glossip, Smith’s own experts effectively conceded that they lacked evidence to prove Smith’s case beyond dispute. See id. at 884.  Proof of some theoretical risk does not clear Smith’s high hurdle: “[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50.  Smith has argued and provided some evidence that the Protocol could theoretically result in some risk of pain if many other events occur, like vomiting or the dislodging of the mask during the execution procedure but — far from providing a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of proposed amendments to the Protocol or his cursory allegations and evidence about the firing squad — he has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain when compared to either of his alleged alternatives, nor that either of his alternative methods would in fact significantly reduce that risk if used instead.

Smith is not guaranteed a painless death.  Bucklew, 139 S. Ct. at 1124.  On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework.  Having failed to show a substantial likelihood of success on the merits, Smith is not entitled to injunctive relief on his Eighth Amendment claim.

Though Smith is surely going to appeal to the Eleventh Circuit and SCOTUS, I doubt he will get a different outcome in the weeks ahead.

January 10, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (10)

"Six U.S. Execution Methods and the Disastrous Quest for Humaneness"

The title of this post is the title of this book chapter authored by Deborah Denno now available via SSRN. Here is its abstract:

This chapter examines the history and current status of the United States' six execution methods: hanging, firing squad, electrocution, lethal gas, lethal injection, and nitrogen hypoxia.  While lethal injection remains the most common technique, inmates have continuously challenged injection's experimental and scientifically dubious procedures on the grounds they are inhumane and unconstitutional.  Indeed, this country's ongoing transition from one technique to another — then back again — abounds with legislative, judicial, and correctional evidence detailing why each method failed so appreciably to become more civilized than the method superseded.  This chapter concludes that every execution state's desire to ensure the death penalty's survival at any cost propels each execution method's celebrated introduction and disastrous perpetuation.

January 10, 2024 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, January 08, 2024

A range of notable death penalty stories from a range of states to kick off 2024

A number of capital headlines/stories from a number of states caught my eye this morning.  Here's a quick round-up of some pieces from the start of the year:

From Alabama, "Alabama convicted killer waits to be executed this month by nitrogen gas"

From California, "Where Los Angeles County district attorney candidates stand on the death penalty"

From Florida, "Overwhelming Percentage of Florida’s Hurst Resentencing Hearings End in Life Sentences"

From Indiana, "The death penalty: Inside Indiana’s complicated history with capital punishment"

From Mississippi, "State still wants execution dates set for 2 men on Mississippi's death row"

From Missouri, "Missouri bill seeks to make rape, child sex trafficking punishable by death"

From Nebraska, "Nebraska Senator introduces bill to make nitrogen asphyxiation a legal method of execution"

From Utah, "Utah Judge Clears the Way for Use of the Firing Squad"

From West Virginia, "Senate President will push reinstatement of death penalty in WV"

From Wyoming, "The Last Time Wyoming Used the Death Penalty was in 1992"

January 8, 2024 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Thursday, December 28, 2023

Another accounting of the Biden DOJ's capital approach as it approaches a capital decision

The Washington Post has this lengthy new article on the capital punishment work of the Biden Administration's Justice Department.  the full headline highlights the themes: "Garland’s death-penalty record will soon include Buffalo killer decision; President Biden’s attorney general has stopped dozens of death-penalty cases he inherited, but continued two involving mass, hate-fueled killings."  Here are a few excerpts:

The Justice Department is nearing a decision over whether to pursue the death penalty for the White gunman who slaughtered 10 Black people at a Buffalo grocery store last year, a racist attack that could lead to the first new capital prosecution authorized by Attorney General Merrick Garland....

Payton Gendron, 20, faces charges on hate crimes and weapons violations for the May 2022 massacre. He already is serving a sentence of life in prison without parole after pleading guilty to New York state murder charges. Defense attorneys said he would plead guilty to the federal counts if prosecutors forego the death penalty.

Garland’s decision is freighted with political significance over whether he believes capital punishment is a just outcome for perpetrators of the nation’s deadliest mass killings. The attorney general has echoed concerns about the death penalty from civil rights groups and Democrats, including President Biden, who say it disproportionately targets minorities and the poor. But nearly three years into his tenure, Garland has sent conflicting signals about his stance.

Prosecutors this year took two death penalty cases Garland inherited to trial, while the attorney general has withdrawn the department’s intent to seek capital punishment in 32 others that also were filed before he took office. In 2021, he issued a moratorium on actually carrying out federal executions, which remains in place. But the Justice Department continues to aggressively fight appeals from the 40 inmates who are on federal death row.

Outside observers say Garland’s decision in the Gendron case could further clarify whether the Biden administration is closing in on defining a new “worst of the worst” standard, in which the death penalty is reserved for mass killers in an age of increasing acts of domestic terrorism. The two cases that went to trial this year, like the Buffalo case, both involved such crimes.

December 28, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Tuesday, December 26, 2023

A notable 2023 year in review in two major death penalty states

Florida and Texas have notable histories, both past and moden, in the application of the death penalty.  The year 2023 added to those histories in various ways, as these two recent year-in-review press pieces detail:

From Florida, "Florida’s death penalty faced major change in 2023, caused national impact: After years without executions, Florida carried out six this year — along with laws expanding the state’s death penalty."  An excerpt:

Florida is one of five states that regularly uses the death penalty — and in 2023 the state stood out for its efforts to increase and expand the use of capital punishment. The state’s moves to resume executions after three years, to lower the bar for juries to recommend death sentences and to expand the crimes eligible for death put Florida at the forefront of the issue nationally....

In the spring, lawmakers and Gov. Ron DeSantis changed state law so juries don’t have to be unanimous to recommend the death penalty. The new minimum is a vote of 8-4 for death. Lawmakers also passed a bill making child sex abuse offenses eligible for the death penalty, a change that contradicts U.S. and Florida Supreme Court precedent. Prosecutors in Florida’s 5th Judicial Circuit this month filed the first such charges, and DeSantis has said they have his “full support.”

From Texas, "Texas executions remained low as 8 prison inmates put to death, 2 from Houston area, in 2023."  An excerpt:

Texas' death row population is at its lowest level in decades and fewer defendants condemned to die by Harris County juries are being executed or sent to death row. 

The Texas Coalition to Abolish the Death Penalty said in its annual report that 2023 marked the smallest death row population in more than 38 years, with a third of those coming from Harris County convictions.  As of December, 67 inmates from Harris County remain on death row, according to Texas Department of Criminal Justice records.

The state put to deaths eight people this year — two of whom were from the Houston area. The number of executions was higher than during the pandemic, but lower than the years prior, according to state records.

December 26, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, December 13, 2023

Alabama documents flags risks to others in plans to pioneer execution with nitrogen gas

NPR has this new story on Alabama's plans to become the first state execute an individual using nitrogen gas under the headline "Alabama's upcoming gas execution could harm witnesses and violate religious liberty."  Here are excerpts from a lengthy piece:

The state of Alabama plans to execute a prisoner in January using nitrogen hypoxia, a process so novel and untested that state officials required the man's spiritual adviser to sign a waiver that said he could be exposed to the gas.  The acknowledgment form, exclusively obtained by NPR, also reveals that the spiritual adviser, Rev. Dr. Jeff Hood, is required to stay at least three feet away from the prisoner, which may violate both their religious liberties.

If Alabama proceeds with the execution, it will be the first time any U.S. state uses nitrogen gas to put a prisoner to death, but the second time Alabama attempts to execute Kenneth Smith.  Alabama's first attempt in 2022 to execute him failed. Before the execution was ultimately called off last year, Smith spent four hours strapped to a gurney as workers tried to insert needles into his veins to inject him with drugs.  Smith's lawyers requested the state use nitrogen gas instead of lethal injection if they attempted another execution.

Hood had an early warning that this execution might be dangerous. "When I first got in touch with Kenny," he said, "one of the first things that he asked me was, 'are you prepared to die to be my spiritual adviser'?"

The Department of Corrections asked Hood to sign a legal document confirming that the new method could put him at risk. The document declared that it was possible, although "highly unlikely," that the hose supplying gas to Smith's mask could detach and "an area of free-flowing nitrogen gas could result, creating a small area of risk (approximately two (2) feet) from the outflow."  It was also possible that nitrogen gas could displace oxygen in the air above Smith's face and head, according to the document, but there would be gas sensors in the room as a safety precaution.  The Department of Corrections asked Hood to agree to remain at least three feet away "from the mask or any outflow of breathing gases discharging from the system."

Critics say the form demonstrates that Alabama has not adequately prepared for the execution and that nitrogen gas may pose serious threats to workers nearby.  "They could start to hyperventilate because their body would detect that they're in a low oxygen environment," said Dr. Joel Zivot, an anesthesiologist and associate professor at Emory University School of Medicine.  "And that severe hyperventilation can lead to a stroke."...

At the time of publication, the agency did not respond to a request for comment about their assessment of the risk to others in the room. NPR requested all other forms the Department of Corrections may have asked workers to sign, but the agency declined to share the documents. A representative said that disclosure would be "detrimental to public interest."...

This year, Hood has been present at four executions in Texas, Oklahoma, and Alabama. He's never been required to acknowledge a risk to his safety before. "There is no doubt in my mind that Alabama is the most ill-prepared, unprofessional execution squad that exists of those three," Hood said.

Despite his reservations, Hood agreed to be Smith's adviser and signed the form on Nov. 15. "I just cling to a real knowledge that, 'greater love hath no one than this, that one would give their life for their friend,'" said Hood, quoting scripture.

December 13, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

Friday, December 08, 2023

Reviewing the uncertain state of the death penalty in the Buckeye State

Writing in the Columbus Monthly, Andrew Welsh-Huggins has this terrific overview of the curious state of capital punisnment in Ohio. The full headline highlights the lengthy piece's themes: "Justice For None: What the Future Holds for Ohio’s Death Penalty: After a 5-year unofficial moratorium, the future of capital punishment in the state is unclear, frustrating both supporters and opponents." Here are excerpts from a piece worth reading in full:

The reasons behind the current de facto moratorium are multifaceted but begin with this: Republican Gov. Mike DeWine has said repeatedly that Ohio can’t obtain the three drugs used in its current execution protocol — midazolam, a sedative; pancuronium bromide or a related drug, a paralyzing agent; and potassium chloride, which stops the heart. Even if the state could locate those drugs, DeWine argues, his administration doesn’t want to risk pharmaceutical companies shutting off access to other drugs needed in state institutions, from state-funded medical facilities to psychiatric hospitals to prisons dispensing regular medication to inmates.

Since taking office in January 2019, DeWine has issued more than 40 reprieves affecting 27 death row inmates, including three reprieves as recently as mid-October.... DeWine’s position is of small comfort to death row inmates and their attorneys, since several states — including Missouri, Oklahoma and Texas — continue to carry out executions with lethal drugs with no apparent backlash from pharmaceutical companies. Asked about this discrepancy, DeWine press secretary Dan Tierney stuck to the party line: The concern remains that any drug, obtained directly or through third-party means, could jeopardize the state of Ohio’s access to pharmaceuticals.

As far as capital punishment itself, Tierney says the governor’s position hasn’t changed since December 2020, when at the end of his second year in office he told the Associated Press that while he still supports the death penalty as Ohio law, he has come to question its value since his days as a state senator when he helped write the state’s current law—enacted in 1981—because of the long delays between crime and punishment....

Bipartisan bills to abolish the death penalty have come and gone repeatedly in recent Ohio legislative sessions, with most never advancing beyond a single hearing.  But this fall, two bills have been introduced both in the House and the Senate, and the bills’ supporters think they have more momentum than in the past.  They note a significant selling point: These versions aren’t retroactive — should the legislation be approved and become law, the death penalty would still be in place for inmates currently sentenced to death....

Ohio’s unofficial moratorium also reflects a broader trend: On the books or not, death sentences are rarer and rarer.  Nationally, the number of executions carried out dropped by 82 percent between 1999 and 2022, according to the Washington, D.C.- based Death Penalty Information Center, while death sentences declined 92 percent during the same time period. Ohio had no death sentences last year or in 2021, and just one in 2020.  Meanwhile, DeWine signed a bill into law in early 2021 that prohibits the execution of individuals suffering from such serious mental illnesses as schizophrenia, schizoaffective disorder, bipolar disorder or delusional disorders at the time of their crimes. That law alone has removed four inmates from death row....

But adhering to the status quo isn’t good enough for Ohio’s top cop, Attorney General Dave Yost, who in his office’s most recent annual report on capital punishment, said the state was laboring under a “broken capital-punishment system.”  Yost, a Republican and a possible candidate for governor in 2026, used financial estimates of the death penalty from other states to conclude that the extra cost of imposing the death penalty on the 128 inmates on Death Row as of the end of 2022 might range between $128 million to $384 million.  “That’s a stunning amount of money to spend on a program that doesn’t achieve its purpose,” Yost wrote.

He added, “This system satisfies nobody.  Those who oppose the death penalty want it abolished altogether, not ticking away like a time bomb that might or might not explode. Those who support the death penalty want it to be fair, timely and effective.  Neither side is getting what it wants while the state goes on pointlessly burning through enormous taxpayer resources.”

December 8, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, December 04, 2023

DPIC releases new report focused on racial history of Missouri’s death penalty

As reported in this DPIC press release, "the Death Penalty Information Center (DPIC) released a report that documents how racial bias and violence affected the past use of the death penalty in Missouri and how that history continues to influence the current administration of capital punishment in the state."  The full 43-page report, titled "Compromised Justice: How A Legacy of Racial Violence Informs Missouri’s Death Penalty Today," is available here.  The executive summary can be found here, and here is how it begins:

Missouri is one of a handful of states that has consistently executed people in the last five years.  In 2023, Missouri executed four people.  Understanding the historical application of the death penalty in Missouri helps our understanding of how capital punishment is used today.

Historically, Missouri’s Death Penalty Was Applied Discriminatorily Based on Race

Decades before Missouri gained statehood, the territory adopted capital punishment laws that were applied based on race.  There were at least four crimes that could only be tried capitally if committed by an enslaved person.  After Missouri became a state in 1821 and had adopted superficially race-neutral capital punishment laws, the death penalty continued to be applied discriminatorily: enslaved people were four times more likely to be executed than white Missourians before 1865.

Missouri Has a Substantial History of Racial Violence Directed at Black Missourians

The first documented lynching in U.S. history happened in Missouri in 1838. By the late 1800s, racial terror lynchings had increased in regularity, particularly in Southern, former slave-holding states.  Throughout the 19th and 20th centuries, at least 60 Black Missourians were killed in lynchings, making it the state with the second highest number of racial terror lynchings outside of the South.

Although the number of lynchings declined, public executions continued in Missouri longer than all but one other state.  Public executions were a form of racial violence: there are examples of sheriffs providing execution attendees with souvenirs such as pieces of the ropes used to hang Black people and even the victim’s body parts.  After a quadruple execution in St. Louis, a drug store owner was permitted to display the severed head of a Black person who was executed in his shop.  The constant reminders of brutal lynchings and executions were used by white people to continually threaten and intimidate Black people.

December 4, 2023 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (9)

Friday, December 01, 2023

DPIC releases year-end report emphasizing small number of executing and death sentencing states in 2023

The Death Penalty Information Center this morning released its annual report here under the heading "The Death Penalty in 2023: Year End Report Only Five States Conducted Executions and Seven States Imposed New Death Sentences in 2023, the Lowest Number of States in 20 Years." Here is the part of the report's introduction, with lots of data and details following thereafter:

This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied....

The Supreme Court granted only one stay of execution, reflecting the view of some members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to use nitrogen gas in an untested, risky method of execution.

December 1, 2023 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Who Sentences | Permalink | Comments (1)

Thursday, November 30, 2023

Oklahoma completes execution despite clemency recommendation by Oklahoma Pardon and Parole Board

As detailed in this new PBS News Hour piece, "Oklahoma executed death row inmate Phillip Hancock on Thursday, despite his claims of self defense and a recommendation for clemency by the Oklahoma Pardon and Parole Board."  Here is more:

Republican Gov. Kevin Stitt’s decision to allow the execution to move forward comes as some state Republicans and advocates call for a pause in executions and a review of Oklahoma’s 36 pending death row cases.

Hancock, 59, was convicted of two murders in 2001.  His attorneys and supporters maintain that he acted in self-defense, saying he was unarmed when he entered an Oklahoma City residence where Robert Jett Jr., 37, and James Lynch, 58, the two murder victims, were present.  Hancock has said he was attacked, beaten with a breakover bar, and threatened with a gun before managing to retrieve the weapon and fatally shooting the two men.  Hancock’s defense team argued the trial lacked physical evidence supporting the prosecution’s version of events.  A woman present during the incident testified that she could not witness the struggle, further complicating the narrative over what happened.

The state board voted 3-2 in favor of clemency in early November.  It was the fourth such recommendation since the state resumed executions in 2021, following a six-year moratorium. Stitt, who previously commuted the sentence of Julius Jones in 2021, did not intervene this time. He denied Hancock’s request for clemency just after 10 a.m. local time, when the execution was scheduled to begin....

Oklahoma has executed 122 people since 1976, the highest number of executions per capita in the country. 

“We are profoundly disappointed that Gov. Stitt has rejected the Pardon and Parole Board’s recommendation of clemency for Phillip Hancock,” Brett Farley of the Oklahoma Conservatives Concerned About the Death Penalty said in a statement. Oklahoma’s practice of capital punishment continues to be riddled with problems, including the inability of the state to prevent the execution of innocent people. Should the state proceed with the scheduled execution on Thursday, it will be yet another gross miscarriage of justice. Phillip’s case is one more reminder why we must insist state leaders reinstate a moratorium in order to correct these problems.”

Republican state Reps. Kevin McDugle and Justin J.J. Humphrey have been critical of Oklahoma’s death row sentences, saying people have been subject to system-wide failures in the state’s justice system, from ineffective defense counsel to prosecutorial overreach.  McDugle said that Hancock was undeserving of such a punishment.  “Right now I don’t believe in the death penalty in Oklahoma. I don’t,” McDugle told the PBS NewsHour in October.  “That’s why we are trying to fix it because if we can’t fix it to where we can execute those who deserve to be executed and quit executing those who don’t deserve to be executed … then we need to get rid of it.”

Earlier this year, supporters of Hancock, including his attorneys, provided the state board with key declarations.  One statement from Hancock’s former girlfriend claimed she arranged with one of the victims to lure Hancock to the house to be “taken care of.”  Hancock’s trial attorney, who admitted to a relapse of drug and alcohol addiction during the case, expressed embarrassment about his representation.  The foreperson of the jury that convicted Hancock provided a declaration that the majority of jurors believed Hancock initially acted in self-defense but later became the aggressor.

November 30, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, November 27, 2023

Notable accounts of implementing Florida's new non-unanimous capital sentencing

This afternoon brought up two notable new items in my news feed concerning Florida's new experiences with its new laws for administering the death peanlty:

From the Death Penalty Information Center, "Florida Judge Imposes Life Sentence for Joshua McClellan, Overriding Non-Unanimous Jury Recommendation for Death":

On November 20, Florida Circuit Judge Heidi Davis sentenced Joshua McClellan to life in prison after a non-unanimous jury returned a recommendation of death in September by a 10-2 vote.  Judge Davis noted the mitigation evidence presented by Mr. McClellan’s defense, including mental health evaluations and testimony regarding his traumatic upbringing, as an explanation for her decision.  Mr. McClellan was one of the first defendants to receive a non-unanimous death recommendation under a new law signed earlier this year by Governor and presidential candidate Ron DeSantis, allowing death sentences when only 8 jurors vote in favor.

From the Tampa Bay Times, "Court weighs if Tampa rapper’s jury should be unanimous on death penalty: State law now allows death by a jury vote of 8-4. Courts disagree whether the new law can apply to pending cases":

This spring, the Legislature and Gov. Ron DeSantis approved a law that eliminated the requirement that juries be unanimous if they are to recommend the death penalty. The new minimum threshold is a vote of 8-4. Thus, even if four jurors vote for life in prison, a court can still impose capital punishment.  But the question lingers: What to do with defendants, like Adams, whose cases were pending when the law changed? Should they be subject to the new 8-4 rule?

Lawyers for [Billy] Adams argued in a court hearing last week that the change would amount to an ex post facto law — a law that applies retroactively — which is explicitly prohibited in the U.S. and Florida constitutions.

Assistant Public Defender Jamie Kane told a judge that the new law creates new pressure for the defense. Under the previous law, the defense only had to convince one juror that a life sentence was appropriate. Under the new law, they have to convince at least five.  “That is a big difference,” Kane said. “Our burden has increased dramatically.”

Hillsborough prosecutors responded that the new 8-4 standard was merely a procedural change in the law, and therefore it should apply to cases going forward, including Adams’. “Does this retroactively increase punishment for this crime?” Assistant State Attorney Lindsay Hodges said in the hearing.  “The answer is no. ... The punishment is still death.”

November 27, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, November 19, 2023

Extended discussion of mental illness and application of the death penalty

Law360 has this lengthy new article, headlined "They Are Mentally Ill; Some States Want Them Off Death Row," which effectively reviews various aspect of how mental illness intersects with capital punishment's application.  I recommend the piece in full, and here is an excerpt:

Death rows across the country are filled with people who ... are severely mentally ill.  While the U.S. Supreme Court has prohibited the death penalty for certain vulnerable groups — people with intellectual disabilities or who were minors at the time of their crime, for instance — it has not spoken about people who suffer from mental health conditions.

Legal experts say the high court has been reluctant to provide clarity in part because it is difficult to define mental illness in a legal sense.  And more broadly, the death penalty remains a political issue where the court dares not to venture, preferring instead to leave decisions on how to administer it to the states.

With the current Supreme Court unlikely to rule on the intersection of mental illness and capital punishment anytime soon, some states that still use the death penalty have taken steps to codify definitions and thresholds for mental illness that are supposed to ensure that only people with sound mental faculties can be executed.  Ohio and Kentucky pioneered those efforts, and more states could be following in the coming years.

"As with a lot of areas of the death penalty, the change in the foreseeable future is not going to happen from the Supreme Court. It's going to happen more at the state level," said John H. Blume, a scholar and director of the Cornell University Law School's Death Penalty Project.

In January 2021, Ohio was the first state to enact a bill that excluded people who suffered severe mental illness at the time of their crime from facing the death penalty.  The law, which passed with bipartisan support, also offered limited retroactive relief, giving people already sentenced to death one year to petition courts to vacate their sentences.  At least five people have been removed from death row under the law, according to the Office of the Ohio Public Defender.

In April, another bipartisan effort put a similar law — although one with no retroactivity provision — on the books in Kentucky.  And in 2022, California, which is currently under a death penalty moratorium, enacted a law to prevent people who are permanently mentally incompetent from being sentenced to death.  The law is the first of its kind in the nation.

November 19, 2023 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (32)

Friday, November 17, 2023

Bureau of Justice Statistics releases "Capital Punishment, 2021 – Statistical Tables"

This morning the Justice Department's Bureau of Justice Statistics released this new report with notable national data on the administration of the death penalty in the United States through the end of 2021.  As I have noted in prior posts, though BJS is often the provider of the best available data on criminal justice administration, in the capital punishment arena the Death Penalty Information Center tends to have much more up-to-date and much more detailed data on capital punishment issues.  Still, this new BJS report provides notable and clear statistical snapshots about the death penalty in the United States, and the document sets out these initial "Key Findings":

November 17, 2023 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (6)

Thursday, November 16, 2023

Alabama and Texas both complete executions

As reported in these two AP article, two death sentences were carried out this evening:

"Alabama inmate executed for the shooting death of man in 1993 robbery":

An Alabama inmate convicted of killing a man during a 1993 robbery when he was a teenager was executed Thursday by lethal injection. Casey McWhorter, 49, was pronounced dead at 6:56 p.m. at a southwest Alabama prison, authorities said. McWhorter was convicted of capital murder and sentenced to death for his role in the robbery and shooting death of Edward Lee Williams, 34, on Feb. 18, 1993.

Prosecutors said McWhorter, who was three months past his 18th birthday at the time of the killing, conspired with two younger teenagers, including Williams’ 15-year-old son, to steal money and other items from Williams’ home and then kill him. The jury that convicted McWhorter recommended a death sentence by a vote of 10-2, which a judge, who had the final decision, imposed, according to court records. The younger teens — Edward Lee Williams Jr. and Daniel Miner, who was 16 — were sentenced to life in prison, according to court records.

"Texas man executed for 2001 killing of 5-year-old girl abducted from a store":

A Texas man convicted of strangling a 5-year-old girl who was taken from a Walmart store nearly 22 years ago and burning her body was executed Thursday evening.

David Renteria, 53, was pronounced dead at 7:11 p.m. CST following an injection at the state penitentiary in Huntsville for the killing of Alexandra Flores. Renteria prayed, sang and asked for forgiveness before his execution.

Coincidentally, a year ago today, November 16, 2022, was the last time there were two executions completed in two states on the same day in the US.  It was Arizona and Texas last year.

November 16, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Sunday, November 12, 2023

Former Prez Trump again talking up the death penalty as a way to address drug problems

Back in March 2018, as noted in this post, then Prez Donald Trump started talking up the idea of the death penalty for drug dealers as part of his stump speeches.  Way back then, I noted that constitutional questions about any such law would be sure to reach the Supreme Court and also that, at that time, there had not been any federal execution for well over a decade.  I also noted that the then-GOP-controlled Congress was working on a sentencing reform bill that could have been a vehicle for adding his Trump's capital sentencing idea.  

Fast forward five+ years, and now Prez-candidate Donald Trump is again talking up the idea of the death penalty for drug dealers as part of his stump speeches.   This Hill article, headlined "Trump doubles down on death penalty for drug dealers," explains:

Former President Trump doubled down on calling for the death penalty for drug dealers Saturday. “President Xi in China controls 1.4 billion people, with an iron hand, no drug problems, you know why they have no drug problems?” Trump said at a campaign event in New Hampshire Saturday. “Death penalty for the drug dealers.”

“You want to solve your drug problem, you have to institute a meaningful death penalty for… a drug dealer,” the former president continued.

This isn’t the first time the former president has called for the death penalty for drug dealers.  Back in June, Trump notably advocated for drug dealers getting the death penalty in a Fox News interview, despite the fact it would have applied to Alice Johnson, a woman whose sentence Trump commuted in 2018.

Though I consider Trump's comments to be more political posturing than policy proposal, I am struck by how the legal landscape has changed since I was commenting about these ideas back in March 2018.  With Justices Kennedy and Ginsburg replaced by (Trump-appointees) Justices Kavanaugh and Barrett, the current Supreme Court seems much more likely to uphold broader applications of the federal death penalty.  I make that statement in part because these Justices expressed no concerns about the 13 federal executions that were carried out in the final six months of Trump's presidency.  And, of course, the sentencing reform bill I was talking about in March 2018 became the FIRST STEP Act that was signed into law by Trump toward the very end of that year.  (Might Trump sometime start describing his "Death penalty for the drug dealers" proposal as a second step in sentencing reform?)     

Prior related posts from 2018:

November 12, 2023 in Campaign 2024 and sentencing issues, Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (7)

Friday, November 10, 2023

Texas completes execution for murder committed 33+ years ago after two death sentencings

As reported in this Texas Tribune piece, "Texas executed Brent Brewer, who spent three decades on death row on Thursday evening for the 1990 murder of Robert Laminack. It was the seventh execution of 2023."  Here is more about this execution:

In late appeals, Brewer's lawyers argued that his death should be delayed to consider the issue of unreliable testimony, or what his lawyers called “junk science,” but late Thursday afternoon the U.S. Supreme Court denied that request. Earlier this week, Texas’ highest criminal appeals court declined similar motions to stay Brewer’s execution.

The Texas Board of Pardons and Paroles unanimously rejected Brewer clemency appeal on Tuesday. Brewer’s legal team requested a lesser penalty for him on the grounds that one of the state’s expert witnesses used unreliable methodologies to testify and that a juror says they mistakenly sentenced Brewer to death.

At 6:23 p.m., Brewer was injected with a lethal dose of pentobarbital. He died 15 minutes later. “I would like to tell the family of the victim that I could never figure out the words to fix what I have broken. I just want you to know that this 53-year-old is not the same reckless 19-year-old kid from 1990. I hope you find peace,” Brewer said in a final statement.

Brent Brewer was convicted of killing Laminack, who owned a business in Amarillo, according to court documents. Brewer asked Laminack for a ride to a Salvation Army with his girlfriend Kristie Nystrom. While en route, Brewer stabbed the 66-year-old Laminack and stole $140 in cash.

Brewer was sentenced to death in 1991 for the murder, but in 2007 the U.S. Supreme Court found that his jury was not given sufficient opportunity for the jury to consider a less severe punishment. Two years later, another jury also sentenced Brewer to death.

Michele Douglas was one of the 2009 jurors. After listening to the evidence, Douglas believed that Brewer didn’t intend to kill Laminack, “things simply got out of hand, with a tragic outcome,” she wrote in an Houston Chronicle opinion piece last week, requesting clemency for Brewer. During the trial, Douglas did not want to vote in favor of capital punishment for Laminack’s murder, which she did not think was premeditated. Douglas said she misunderstood the jury instructions. “Believing — incorrectly — that my vote was meaningless, I acquiesced in the majority’s death penalty verdict. I cried when it was read in court. I was haunted afterwards,” Douglas wrote last week.

A death sentence requires a unanimous vote from the jury in Texas. Over the years, jurors in different capital cases across the state have said the instructions are not clear and they would have voted for life sentences without the possibility of parole if they had known that was an option. Lawmakers in the Texas House have passed legislation during several sessions attempting to clarify the instructions but those bills failed to get support from the Senate....

November 10, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (2)

Thursday, November 09, 2023

Split Oklahoma Pardon and Parole Board recommends clemency for condemned inmate based on (jury-rejected) self-defense claim

As detailed in this AP piece, the "Oklahoma Pardon and Parole Board narrowly voted Wednesday to recommend sparing the life of a man set to be executed later this month for what he claims were the self-defense killings of two men in Oklahoma City in 2001." Here is more:

The board voted 3-2 to recommend clemency for Phillip Dean Hancock, who has long maintained he shot and killed Robert Jett Jr., 37, and James Lynch, 58, in self-defense after the two men attacked him.  Republican Gov. Kevin Stitt must now decide whether to grant clemency to Hancock, who is scheduled to receive a lethal injection on Nov. 30.

The board’s decision came after it heard from Hancock, 59, his attorneys, lawyers from the state and members of Jett and Lynch’s families.  Two Republican state legislators who say they strongly support the death penalty, Reps. Kevin McDugle and Justin Humphrey, also testified on Hancock’s behalf. “If any one of us were in that same exact situation ... we would have fought for our lives,” said McDugle, R-Broken Arrow.

Hancock’s attorneys claim that Jett and Lynch were members of outlaw motorcycle gangs who lured Hancock, who was unarmed, to Jett’s home and that Jett ordered him to get inside a large cage before swinging a metal bar at him. After Jett and Lynch attacked him, Hancock managed to take Jett’s pistol from him and shoot them both....

But attorneys for the state argued Hancock gave shifting accounts of what exactly happened and that his testimony didn’t align with the physical evidence at the scene.  Assistant Attorney General Joshua Lockett said the jury took all of this into account before rendering its verdict, which has been upheld by numerous state and federal appeals courts. “Hancock’s credibility was absolutely eviscerated at trial because his claims conflicted with the evidence,” Lockett said.

Lockett also said after Hancock shot Jett inside the house, a witness who was at the scene testified Hancock followed Jett into the backyard and heard a wounded Jett say: “I’m going to die.” Hancock responded, “Yes, you are,” before shooting him again, Lockett said. “Chasing someone down, telling them you are about to kill them and then doing it is not self-defense,” Lockett said.

Jett’s brother, Ryan Jett, was among several family members who testified and urged the panel not to recommend clemency.  “I don’t claim that my brother was an angel by any means, but he didn’t deserve to die in the backyard like a dog,” Ryan Jett said.

Hancock also was convicted of first-degree manslaughter in a separate shooting in 1982 in which he also claimed self defense. He served less than three years of a four-year sentence in that case....

Stitt has granted clemency only one time, in 2021, to death row inmate Julius Jones, commuting his sentence to life without parole just hours before Jones was scheduled to receive a lethal injection.  Stitt has denied clemency recommendations from the board in two other cases: Bigler Stouffer and James Coddington, both of whom were later executed.

November 9, 2023 in Clemency and Pardons, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, November 08, 2023

Alabama officially sets execution date for historic effort to use nitrogen gas for completing death sentence

I have been noting on this blog for at least a decade some of the talk about whether nitrogen gas might perhaps be the best modern execution alternative to lethal injection (see some of the posts below).   But now, as reported in this AP piece, it seems Alabama is actually on track to actually utilize this long-discussed means of completing a death sentence: 

Alabama has set a January execution date for what would be the nation’s first attempt to put an inmate to death using nitrogen gas.  Alabama Gov. Kay Ivey on Wednesday announced a Jan. 25 execution date for Kenneth Eugene Smith using the new method.  Smith was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in northwestern Alabama.

“The execution will be carried out by nitrogen hypoxia, the method previously requested by the inmate as an alternative to lethal injection,” Ivey spokesperson Gina Maiola wrote in an emailed statement.  The statement referenced how Smith’s attorneys noted the state was developing the nitrogen method when fighting previous efforts to execute him by lethal injection.

The announcement of the execution date moves Alabama closer to becoming the first state to attempt an execution by nitrogen gas, although there will be a legal fight before it is used.  Nitrogen hypoxia has been authorized as an execution method in Alabama, Oklahoma and Mississippi, but no state has used it.

Smith’s attorneys on Thursday filed a lawsuit in federal court seeking to stop the execution, saying Alabama was attempting to make their client the “test subject for this novel and experimental method.”  They noted the state tried but failed to execute Smith by lethal injection last year.  The Alabama Department of Corrections called off the execution when the execution team could not get the required two intravenous lines connected to Smith....

A divided Alabama Supreme Court last week granted the state attorney general’s request to authorize Smith’s execution.  It is the responsibility of the governor to set the exact execution date....

Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with proper levels of oxygen. Under the proposed procedures, a mask would be placed over the inmate’s nose and mouth and their breathing air would be replaced with nitrogen, depriving them of the oxygen needed to stay alive.  The nitrogen “will be administered for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer,” according to the execution protocol.

A few (of many) prior related posts:

November 8, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Tuesday, November 07, 2023

Intriguing numbers in latest Gallup polling on US views on the death penalty

Gallup yesterday released this report, headlined "New 47% Low Say Death Penalty Is Fairly Applied in U.S.," which discusses the results of its latest polling about capital punishment views in the United States.  Here is some of the descriptions of the results:

For the first time since Gallup started asking about the fairness of the death penalty's application in the U.S. -- a trend that dates back to 2000 -- more Americans say it is applied unfairly (50%) than fairly (47%). This represents a five-point increase in the percentage who think it is applied unfairly since the prior measurement in 2018.

From 2000 through 2015, between 51% and 61% of Americans thought capital punishment was used fairly in the U.S., but since 2016, readings on the measure have averaged 49%. The latest reading is from Gallup’s annual Crime survey, conducted Oct. 2-23.

Solid majorities of Republicans since 2000 have consistently said the death penalty is fairly applied, including 68% currently. Meanwhile, Democrats have been far less likely to say the death penalty is applied fairly, barely reaching the majority level twice -- in 2005 and 2006. The current 28% reading among Democrats is the lowest for the group, while independents’ 46% reading ties their lowest, from 2000.

Gallup first asked Americans whether they supported the death penalty for convicted murderers in 1936 and found 59% favoring it. With the exception of several readings between 1957 and March 1972, including the record-low 42% in 1966, majorities have supported it since then.

Even after the U.S. Supreme Court ruled the death penalty unconstitutional in June 1972, majorities continued to back it, and after it was reinstated in 1976, public support for it grew, eventually peaking at 80% in 1994. At least 60% of U.S. adults favored capital punishment until 2017, when support dipped below that level. The current 53% of Americans who favor the death penalty is the lowest since 1972, though it is not statistically different from 54% and 55% readings over the past three years.

Partisans' views of the death penalty continue to differ sharply, with most Republicans (81%) and a slim majority of independents (51%) favoring it, but most Democrats (65%) opposing it. The 32% of Democrats who currently support capital punishment for murderers is the lowest in Gallup’s trend. Support for the death penalty in 2023 among independents and Democrats falls well below these groups' recent averages of 60% and 48%, respectively, while Republican support is similar to the 79% average.

A separate question gauging Americans’ opinions of how frequently the death penalty is imposed finds that 39% think it is not used often enough and equal 28% shares saying it is used too often and not enough. This general pattern -- whereby a plurality or majority think capital punishment is not used enough, while smaller percentages are divided between thinking it is used about the right amount or too often -- has been the case since the inception of this Gallup trend question.

November 7, 2023 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (22)

Thursday, October 26, 2023

Top Texas criminal court stays execution at last moment (and a quarter century after murder)

As reported in this AP piece, "Texas’ top criminal appeals court has stopped Thursday evening’s scheduled execution of a Texas inmate who had been condemned for killing another prisoner more than 26 years ago."  Here is more:

William Speer, 49, had been set to receive a lethal injection at the state penitentiary in Huntsville. The victim’s sister and religious leaders had recently asked authorities to spare his life.

Speer was convicted of the strangling death of Gary Dickerson in July 1997 at the Telford state prison, located near New Boston in northeast Texas.

His attorneys had asked the Texas Court of Criminal Appeals to stop his execution over allegations that prosecutors at his 2001 trial failed to disclose evidence, presented false testimony and that his trial lawyers failed to present evidence about Speer’s troubled childhood. They say Speer was physically and sexually abused as a child. Prosecutors have denied the allegations against them.

Less than five hours before his scheduled execution at 6 p.m. CDT, the appeals court granted the request by Speer’s attorneys. “We have reviewed the application and find that (Speer’s) execution should be stayed pending further order of this Court,” the appeals court wrote in its two-page order. Speer’s lawyers said the stay order cannot be appealed to federal courts because it is a state law issue.

His lawyers said Speer has transformed while in prison, expressed regret for his actions and now helps lead a religious program that ministers to other death row inmates.... The Texas Attorney General’s Office did not immediately reply to an email seeking comment....

At the time of inmate Dickerson’s killing, Speer had been serving a life sentence for fatally shooting a friend’s father, Jerry Collins, at the man’s Houston area home in January 1991. Speer was 16 then.

The paroles board on Tuesday voted 7-0 against commuting Speer’s death sentence to a lesser penalty. Members also rejected granting a six-month reprieve.

Speer killed Dickerson in a bid to join the Texas Mafia prison gang, prosecutors said. The gang ordered the hit after mistakenly concluding Dickerson had informed authorities about tobacco it had tried to smuggle into the prison. Speer and another inmate, Anibal Canales Jr. were sentenced to death for the killing. Canales remains on death row.

At Speer’s trial, Sammie Martin, who is Dickerson’s only living sibling, told jurors her mother was devasted by her brother’s death. But Martin asked that Speer’s life be spared. “I have spent much time reflecting on what justice my brother and my family deserved,” Martin wrote in federal court documents filed earlier this week. “In my heart, I feel that he is not only remorseful for his actions but has been doing good works for others and has something left to offer the world.”

Martin said she was never informed by prosecutors about Speer’s scheduled execution. In court documents filed this week, lawyers with the Texas Attorney General’s Office said that despite Martin’s feelings about Speer’s execution, “the state retains its interest in deterring gang murders and prison violence, as well as seeing justice done for Dickerson.”

A group of religious leaders from around the country have also asked that Speer be spared. In a letter to the paroles board and Gov. Greg Abbott, they wrote that Speer’s religious work with other prisoners “does not excuse his actions, but it gives us a fuller picture of who Will is as a human, Christian, leader, and teacher.”

October 26, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (14)

Sunday, October 22, 2023

Death Penalty Information Center has updated its impressive "Death Penalty Census."

Via this notice on the Death Penalty Information Center's website, I have noticed that DPIC "has updated its Death Penalty Census, a database of every death sentence imposed since 1972."  Here is more about this valuable resource:

The database now contains information accurate as of January 1, 2022, inclusive of the 50th year of the modern death penalty. The Census contains information on 9,820 death sentences imposed on 8,842 defendants. It includes the name, race, and gender of each defendant, along with the region, state, county, and year in which the sentence was imposed.

When it was launched in 2022, the Census included available data through January 1, 2021. With the addition of one year of data, it now includes all death sentences imposed through January 1, 2022, as well as the outcome of death sentences and current case statuses as of that date. The update added 21 new death sentences imposed in 2021, three exonerations that took place that year, and numerous updates regarding sentence reversals, deaths on death row, resentences, and other changes to the status of cases.

For anyone interested in data for tracking modern capital punishment, this DPIC Death Penalty Census seems like a gold-standard resource.

October 22, 2023 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (0)

Tuesday, October 17, 2023

With clemency efforts stalled and new incoming governor, might Louisiana become an active death penalty state again?

Louisiana was once a very active death penalty state with more executions than any state other than Florida and Texas in the 1980s.  Renown capital abolitionist Sister Helen Prejean wrote her famous 1993 book, Dead Man Walking, based on her work ministering to two convicted murderers on Louisiana's death row.

But only one execution has been completed in the Pelican State over the last two decades, and there was much talk about possible efforts by outgoing Louisiana Gov John Bel Edwards to commute all of the state's death row.  But this report from the Louisiana Illuminator spotlights why the state might now be on the verge of another capital punishment shift. The press report should be read in full, but here are the highlights:

The Louisiana state Board of Pardons voted Friday against granting clemency hearings to five Louisiana death row prisoners, ending a monthslong effort to spare the lives of more than 50 people condemned to death.

Over four hours, the four-member panel in Baton Rouge heard impassioned testimony from attorneys, from still-grieving families of murder victims and from friends and relatives of the prisoners themselves.  The board ultimately split the vote 2-2 in four cases, leading to denials, with members Tony Marabella and Bonnie Jackson voting in favor of granting clemency hearings and Curtis Fremin and Alvin Roche, Jr. voting against.  The board denied a fifth case — Winthrop Earl Eaton, convicted in the 1985 killing of Monroe pastor Rev. Lea Joyner — in a 3-1 vote, with Marabella the lone member voting to grant the hearing.

Initial plans to hold clemency hearings — and vote on whether to commute the prisoners’ sentences from death to life — at Friday’s meeting were derailed after conservative Louisiana Attorney General Jeff Landry and several parish district attorneys sued the board.  Under a settlement agreement, rather than voting on whether to commute, the panel met to consider whether allow them to have their cases heard at a future hearing.

There are currently no plans to consider an additional 51 clemency requests, despite Gov. John Bel Edwards’ support of hearings for all 56 death row prisoners who applied.  Edwards, who, as governor, makes the final decision on recommendations from the board, kicked up a political storm earlier this year when he publicly stated his opposition to the death penalty. Capital defense attorneys responded by seeking to have the sentences of up to 56 death row prisoners commuted to life, while a group of pro-death penalty prosecutors, led by Landry, sought to stymie those efforts.

Landry, the leading candidate in the upcoming election for governor, has expressed his desire to move forward with the executions of those on death row, something that hasn’t happened in Louisiana since 2010 due to a shortage of lethal injection drugs.

Notably, as of Saturday night, as reported in this AP article, Landry is not just Louisiana's Attorney General, he is also now governor-elect. And the AP notes he has campaigned on tough-on-crime themes:

Landry has made clear that one of his top priorities as governor would be addressing crime in urban areas. The Republican has pushed a tough-on-crime rhetoric, calling for more "transparency" in the justice system and continuing to support capital punishment. Louisiana has the nation's second-highest murder rate per capita.

Of course, political advocacy for capital punishment does not always convert, quickly or even at any time, to actually completing executions.  But it still seems quite notable that, just earlier this year, there was much talk about mass commutation on Louisiana's death row; now it seems much more likely that Louisiana could be getting back into the execution business.

October 17, 2023 in Clemency and Pardons, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Wednesday, October 11, 2023

After a 6-3 SCOTUS vote to vacate stay, Texas completes its sixth execution of 2023

As detailed in this AP article, a "Texas man who unsuccessfully challenged the safety of the state’s lethal injection drugs and raised questions about evidence used to persuade a jury to sentence him to death for killing an elderly woman decades ago was executed late Tuesday."  Here is more:

Jedidiah Murphy, 48, was pronounced dead after an injection at the state penitentiary in Huntsville for the October 2000 fatal shooting of 80-year-old Bertie Lee Cunningham of the Dallas suburb of Garland. Cunningham was killed during a carjacking....

As the lethal dose of pentobarbital took effect, he took two barely audible breaths and appeared to go to sleep, The pastor stood over him, his left hand over Murphy’s heart, until a physician entered the room about 20 minutes later to examine Murphy and pronounce him dead at 10:15 p.m., 25 minutes after the drug began....

The execution took place hours after the U.S. Supreme Court overturned an order that had delayed the death sentence from being carried out. The high court late Tuesday also turned down another request to stay Murphy’s execution over claims the drugs he was injected with were exposed to extreme heat and smoke during a recent fire, making them unsafe and leaving him at risk of pain and suffering.

The 5th U.S. Circuit Court of Appeals on Monday had upheld a federal judge’s order from last week delaying the execution after Murphy’s lawyers filed a lawsuit seeking DNA testing of evidence presented at his 2001 trial. But the state attorney general’s office appealed the 5th Circuit’s decision, with the Supreme Court ruling in Texas’ favor.

In their filings, Murphy’s attorneys had questioned evidence of two robberies and a kidnapping used by prosecutors to persuade jurors during the penalty phase of his trial that Murphy would be a future danger — a legal finding needed to secure a death sentence in Texas. Murphy admitted he killed Cunningham but had long denied he committed the robberies or kidnapping. His attorneys argued these crimes were the strongest evidence prosecutors had to show Murphy would pose an ongoing threat, but that the evidence linking him to the crimes was problematic, including a questionable identification of Murphy by one of the victims....

Murphy was the sixth inmate in Texas and the 20th in the U.S. put to death this year.... Although Texas has been the nation’s busiest capital punishment state, it had been seven months since its last execution.... Three more executions are scheduled in Texas this year.

This order from the Supreme Court granting the request by Texas to vacate the lower court stay details that Justices Sotomayor, Kagan and Jackson voted to uphold the stay (but I have not found any opinions discussing any of the SCOTUS votes in this matter).

October 11, 2023 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, October 03, 2023

Florida completes its sixth execution of 2023

As reported in this AP piece, "man who killed two women after meeting them a day apart in north Florida bars in 1996 was put to death Tuesday evening." Here is more:

Michael Zack III, 54, was pronounced dead minutes after 6:14 p.m. following a lethal injection at Florida State Prison in Starke....

He was executed for the murder of Ravonne Smith, a bar employee he befriended and later beat and stabbed with an oyster knife in June 1996.  He also was convicted and separately sentenced to life in prison for murdering Laura Rosillo, who he met at another Florida Panhandle bar....

Zack’s lawyers had sought to stop the execution, arguing that he was a victim of fetal alcohol syndrome and post-traumatic stress disorder.  On Monday afternoon, the U.S. Supreme Court denied Zack’s appeal for a stay of execution without comment.

Zack’s execution was the eighth under Gov. Ron DeSantis since 2019 and the sixth this year after no executions were carried out from 2020 to 2022.  DeSantis has made tougher, more far-reaching death penalty laws an issue in his presidential campaign.

October 3, 2023 in Death Penalty Reforms | Permalink | Comments (6)

Tuesday, September 26, 2023

Notable new SCOTUS accounting of stays in capital cases over the last decade

The Supreme Court does not start hear oral arguments to officially start its new Term until next Monday, but it does have its "long conference" scheduled for today and Bloomberg Law has this interesting new piece for capital case watchers.   The piece is headlined "Death Row Inmates Find Fewer Paths to Supreme Court Reprieves," it is is worth a full read. Here are excerpts:

Richard Glossip has had his last meal three times. It may be four if the US Supreme Court doesn’t agree at its private conference Tuesday to hear the Oklahoma death row inmate’s latest appeal.

Glossip’s execution dates have been blocked nine times, most recently by the high court in May, since he was convicted in 1998 of hiring a man to kill the owner of the motel he managed.  But his case is unusual: only one other inmate has had an execution put on hold since Justice Ruth Bader Ginsburg died in September 2020, giving President Donald Trump his third appointment to cement a 6-3 conservative majority on the court.

In that time, the justices have voted nine times to let a death sentence blocked by a lower court be carried out, according to Stephen Vladeck, a University of Texas at Austin School of Law professor, who’s been tracking emergency requests to the Supreme Court since 2019.  “There’s a good bet they vacate the death sentence in Glossip, but that’s not going to be a bellwether for anything,” Vladeck said.  “You can count on one finger the number of cases in the last few years where the state has joined the prisoner in urging the court to step in.”

Bloomberg Law, in one of the first attempts to identify the outcomes of all emergency requests to stay executions, identified more than 270 in its dockets database since Jan. 1, 2013.  The justices have agreed to block an execution 11 times, according to cases identified in Bloomberg Law’s docketing system and in reporting.  And of 21 emergency requests to vacate a stay put in place by a lower court that Bloomberg Law identified, 18 were granted. That shows the court is much more likely to let executions proceed than to put them on hold.

Those findings are almost certainly undercounted due to the variable nature of death penalty court filings.  The Supreme Court doesn’t require emergency applications to be labeled as a capital case, and it doesn’t have a complete and searchable list of all historical death penalty cases.  Groups like the Death Penalty Information Center track executions but they don’t track all appeals.

The only stay of execution granted since Ginsburg’s death, other than Glossip’s, was in 2021, when the court blocked Texas from putting John Henry Ramirez to death while it considered whether he could keep fighting the state’s refusal to let his pastor pray out loud and touch him during his execution.  Ramirez ultimately won when the court backed his religious requests in a 8-1 decision. Ramirez was eventually executed in 2022 with his religious adviser in the chamber....

The court’s conservative wing has been skeptical of emergency requests in death row appeals and has accused inmates of trying to delay their execution.  When the court ruled in Bucklew v. Precythe in 2019 that the Eighth Amendment’s ban on cruel and unusual punishment doesn’t guarantee prisoners a painless death, Justice Neil Gorsuch warned courts to watch out for such attempts.  “Last-minute stays should be the extreme exception, not the norm,” he said, adding that the last-minute nature of an application that could have been brought earlier or is an applicant’s attempt at manipulation “may be grounds for denial of a stay.”

Vladeck said that blesses the practice of deciding emergency applications without resolving a prisoner’s claims, something the court’s liberal wing has often pointed to as a reason for the court to put on the brakes....

Zack Smith, a legal fellow and manager of The Heritage Foundation’s Supreme Court and Appellate Advocacy Program, pushed back on the notion that the justices are denying cases without reviewing prisoners’ claims.  Death row inmates often challenge their convictions multiple ways in both state and federal courts, he said.

“It’s important to understand how much process is involved in any of these death penalty cases,” he said. “Some take multiple trips to the Supreme Court.”  At some point, after several layers of collateral review in cases in which the individual has either pleaded guilty or been found guilty by a jury of their peers, Smith said “a judgment has to be final.”

September 26, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (13)

Thursday, September 21, 2023

Oklahoma completes its third execution of 2023 (which is 18th in US this year)

As reported in this local article, "Convicted murderer Anthony Sanchez, 44, was put to death by lethal injection Thursday at the Oklahoma State Penitentiary in McAlester. Prison officials said the execution occurred at 10:19 a.m." Here is more:

Sanchez was convicted in 2006 of first-degree murder in the shooting death of Juli Busken, a 21-year-old dance student who had completed her courses at OU and was preparing to return to her parents' home in Arkansas and enroll in graduate school. The U.S. Supreme Court denied a last-minute petition to pause Sanchez's execution.

Authorities said Busken was raped and shot in the head after being abducted from a Norman apartment complex in 1996. Her body was later found at Lake Stanley Draper southeast of Oklahoma City.

Under state law, Sanchez had to give up a sample of his DNA when he went to prison in Oklahoma in 2002 for second-degree burglary. A DNA profile was eventually made from semen stains found on Busken's clothing. In 2004, the Oklahoma State Bureau of Investigation got a "hit" on the DNA that linked Sanchez to the Busken case.

Attorney General Gentner Drummond and his assistants told U.S. District Judge Joe Heaton in a legal brief last week that the odds that the match was a mistake were 1 in 200 trillion Caucasians, 1 in 20 quadrillion African Americans and 1 in 94 trillion Southwest Hispanics.... 'I am 100% innocent,' Anthony Sanchez wrote in letter to Oklahoma Gov. Kevin Stitt

Sanchez maintained his innocence, but he waived his clemency hearing before the Oklahoma Pardon and Parole Board. In April, the Oklahoma Court of Criminal Appeals ruled 5-0 against Sanchez, who, in a new challenge, claimed his father confessed to Busken’s murder before committing suicide last year. The OSBI concluded the father was not the killer after conducting more DNA tests in February. The OSBI did the testing after getting a sample of the father's blood from the medical examiner's office, which had investigated his death.

I note in the title of this post that this execution was the 18th in the US so far in 2023, which ties the total number of US execution for the full year of 2022. With six more serious execution dates listed by DPIC here, it seems quite possible that 2023 will have the most executions in the US since 2018.  And if a few more execution dates get added, it is still possible that there could end up more executions in 2023 than any year since 2014.

September 21, 2023 in Death Penalty Reforms | Permalink | Comments (1)

Wednesday, September 06, 2023

Prez Biden reportedly involved in rejecting plea deal terms for 9/11 defendants

As reported in this New York Times piece, "President Biden has rejected a list of proposed conditions sought by the five men who are accused of conspiring in the Sept. 11, 2001, terrorist attacks in exchange for pleading guilty and receiving a maximum punishment of life in prison, according to two administration officials."  Here is more about reported presidential involvement in the prosecution of notorious criminals:

An offer by military prosecutors, made in March 2022, that would spare them death sentences if they admitted to their alleged roles in the hijackings, remains on the table, officials said. But Mr. Biden’s decision to reject additional conditions lessens the likelihood of reaching such a deal....

The White House was asked to weigh in on a proposed plea agreement about a year and a half ago. In talks with prosecutors, defense lawyers said Khalid Shaikh Mohammed, the accused mastermind, and four other defendants wanted certain accommodations, including assurances they would not serve their sentences in solitary confinement and could instead continue to eat and pray communally — as they do now as detainees at Guantánamo Bay.

The prisoners also sought a civilian-run program to treat sleep disorders, brain injuries, gastrointestinal damage or other health problems they attribute to the agency’s brutal interrogation methods during their three to four years in C.I.A. custody before their transfer to Guantánamo Bay in 2006.

An agreement to meet such conditions for the detainees, potentially for the rest of their lives, carried major policy implications likely beyond the authority of a criminal court or a particular team of prosecutors.

But the White House has been leery of involvement in the case, which is politically fraught. Some relatives of the 3,000 victims want a trial with the prospect, however distant, of having the perpetrators of the worst terrorist attack on U.S. soil sentenced to death. Others oppose the death penalty on principle, have no faith in the tribunal system, or have become resigned to the idea that, because the defendants were tortured by C.I.A., capital punishment is unlikely.

More than a year passed as prosecutors awaited an answer on whether the administration would consent to the proposed conditions, referred to as joint “policy principles” in court filings. A filing on Wednesday, which came just days before the 22nd anniversary of the attacks, indicated that the administration had finally said it would not.

“The administration declines to accept the terms of the proposed joint policy principles offered by the accused in the military commissions case, United States v. Mohammed, et al,” prosecutors said in the filing, according to someone who had been shown a copy. It was not yet posted on the Pentagon’s war court website.

Mr. Biden, according to the officials familiar with the matter, adopted a recommendation by the defense secretary, Lloyd J. Austin III. The court filing does not offer a rationale for rejecting the proposed conditions, according to the officials, who spoke on the condition of anonymity to discuss the sensitive matter.

One official said Mr. Biden did not believe the proposals, as a basis for a plea deal, would be appropriate, and the other cited the egregious nature of the attacks. But Mr. Biden took no position on the general notion that a plea deal could eliminate the possibility of death sentences. At a military commission, a senior Pentagon official, called a convening authority, oversees the cases and decides such questions....

Prosecutors had been explaining the mechanics of admitting guilt in court proceedings in exchange for life sentences in meetings with small groups of family members in New York, Boston and Florida since at least May. They sent out a two-page letter to reach a wider group last month. “It cannot be overstated that a guilty plea is conclusive evidence of guilt,” it said.

The possibility of a deal stirred emotions among the relatives of the victims of the Sept. 11 attacks — both those who envisioned a trial and death sentence and those who wanted a resolution that would not face the possibility of an appeal.

September 6, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, August 27, 2023

Detailing challenges after Florida's move away from requiring capital jury unanimity

The Tampa Bay Times has this extended article about the legal uncertainties and other challenges in Florida in the wake of the state's recent reform to its capital punishment procedures.  The full headline of the piece provides a chaotic summary: "Florida death penalty changes causing ‘chaos,’ attorneys say: 'Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,' one death penalty expert said." I recommend the full article, and here are a few excerpts:

A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases....

The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations.  The change — prompted by Parkland school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death-penalty jury standard in the nation.

Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida.  The ruling found that the state’s death-penalty process was unconstitutional.

In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required.  The Legislature responded in 2017 by putting such a unanimous requirement in law.

Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered resentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries.  Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.

About 90 resentencing proceedings were completed under the unanimity requirement before this year’s law went into effect.  More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the resentencings.

When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst resentencing cases were pending. That has led to disputes about which standard should apply....

The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority.  The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary....

The change is affecting Death Row inmates preparing for resentencings because of the Hurst decision.  The unanimous standard was in place when the resentencings were ordered, leading their attorneys to argue it should continue to apply in the cases.

The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively....

Judges — including in the same judicial circuit — are divided on the issue.  As circuit judges grapple with which standard should apply, a number of appeals have made it to the Florida Supreme Court.  But a “lead” case — if there will be one — has not emerged....

Melanie Kalmanson, an attorney who publishes the Tracking Florida’s Death Penalty blog, pointed to the state’s filings in the Gonzalez case to demonstrate what she called “widespread chaos” in the death-penalty system.  “There’s some indication that even the state is not sure how they want to address the litigation about the new statute,” she said.

August 27, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, August 23, 2023

Ohio prosecutors talking up nitrogen gas executions as a way to reboot state's dormant machinery of death

I flagged in this post a few days ago the dormant state of the death penalty in Ohio.  There has not been an execution in the Buckeye State in over five years even though the state has 122 condemned murderers currently on death row, and 31 of these murderers have exhausted all standard appeals.  The primary reason for this de facto execution moratorium has been the state's ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein.  That history has prompted Governor Mike DeWine to keep pushing back and pushing back execution dates for death row inmates while suggesting to the Ohio General Assembly that they need to address improving execution methods head on.

This new local article, headlined "Prosecutors want to resume executions using nitrogen hypoxia," reports that Ohio prosecutors have a new(?) idea for getting the state's machinery of death up and running again:

It's been five years since Ohio has executed its death penalty. Gov. Mike DeWine delayed executions due to limited access of the drug used for the lethal injection.  But Ohio prosecutors are looking to resume executions through alternative methods.  "We just want to find a pathway forward for the victims of these crimes," said Louis Tobin, the executive director of Ohio Prosecuting Attorneys Association.  

Tobin said Ohio needs to continue its using the death penalty to provide proper justice.  He said if there is a shortage of the drug needed for the lethal injection, Ohio can use nitrogen hypoxia.  "Filings by the defense bar and federal death penalty pleadings and in (the) Supreme Court of Ohio pleadings have acknowledged that it would be a painless method of execution," Tobin said.   The process of nitrogen hypoxia works by removing oxygen and letting a person die by inhaling nitrogen gas....

"Somebody who murders one young child is already facing that possibility without a death penalty," Tobin said, "and without the additional accountability that it provides, you're allowing them to kill the second and third child for free. They're free kills. So the death penalty is what justice demands sometimes. Either we're going to be a state that prioritizes public safety and prioritizes the victims of crime or we're not." 

In response to the Ohio Prosecuting Attorneys Association proposal, the governor’s office said only the Ohio General Assembly can change the methods for applying the death penalty.

As long-time readers know, there has long been discussion of execution by nitrogen gas as an alternative to lethal injections.  This discussion really picked up over the last decade as more and more states struggled with their lethal injection protocols.  And  in 2018, Alabama enacted a statute that formally authorized execution by nitrogen, and at least a few other states have execution protocol laws that would allow using this novel execution method.  But, as of now, no modern execution in the US has been completed using nitrogen gas and any efforts to switch execution methods in Ohio would surely engender significant state and federal litigation.

For a variety of reasons, I expect that Ohio's death penalty will remain dormant for the rest of Governor DeWine's time in office.  But, in a couple of years, a number of folks with a track record of support for the death penalty will likely start running to be Ohio's next Governor and it will be very interesting to see if the state's dormant death penalty gets any more attention.  In the meantime, folks can read up on nitrogen gas as an execution method via a small sample of prior posts on the topic: 

August 23, 2023 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (25)

Sunday, August 20, 2023

Updating the (dormant) state of the death penalty in Ohio

The headline of this local article, "Ohio death row inmates spend 21 years waiting for execution date," caught my eye, and the piece includes a useful summary of the Buckeye State's modern death penalty history.  Here is an excerpt:

Ohio’s next execution of a death row inmate was originally on the calendar for exactly three months from now on November 16. But that date, like so many others, was recently pushed back.

It’s been five years since the state’s last execution. We found state officials are calling the system “broken” as Ohio’s unofficial death penalty moratorium continues.

The governor keeps pushing back execution dates for death row inmates as the struggle to find the drugs needed for lethal injection stretches on. 122 inmates are currently on death row in Ohio. 19 Investigates found 31 of those inmates are scheduled for execution....

The average time an inmate spends on death row is now 21 years. Ohio death row inmates are more likely to die from natural causes or suicide than lethal injection.

In the Ohio Attorney General’s most recent Annual Capital Crimes Report, state officials said “It is a system that is not fairly, equally or promptly enforced.”

“Ohio’s residents and their elected leaders should make one of two decisions: Either overhaul the capital punishment system to make it effective, or end it,” the report concluded.

The report cited studies showing it costs at least one million dollars per inmate to keep them on death row, which is much more than the cost of life in prison.

August 20, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7)

Thursday, August 17, 2023

Federal prosecutions alert families that possible plea deals with 9/11 defendants may preclude death penalty

As reported in this AP piece, the "suspected architect of the Sept. 11, 2001, attacks and his fellow defendants may never face the death penalty under plea agreements now under consideration to bring an end to their more than decadelong prosecution, the Pentagon and FBI have advised families of some of the thousands killed." Here is more:

The notice, made in a letter that was sent to several of the families and obtained by The Associated Press, comes 1 1/2 years after military prosecutors and defense lawyers began exploring a negotiated resolution to the case.

The prosecution of Khalid Sheikh Mohammed and four others held at the U.S. detention center in Guantanamo Bay, Cuba, has been troubled by repeated delays and legal disputes, especially over the legal ramifications of the interrogation under torture that the men initially underwent while in CIA custody. No trial date has been set.

“The Office of the Chief Prosecutor has been negotiating and is considering entering into pre-trial agreements,” or PTAs, the letter said. It told the families that while no plea agreement “has been finalized, and may never be finalized, it is possible that a PTA in this case would remove the possibility of the death penalty.”

Some relatives of the nearly 3,000 people killed outright in the terror attacks expressed outrage over the prospect of ending the case short of a verdict. The military prosecutors pledged to take their views into consideration and present them to the military authorities who would make the final decision on accepting any plea agreement.

The letter, dated Aug. 1, was received by at least some of the family members only this week. It asks them to respond by Monday to the FBI’s victim services division with any comments or questions about the possibility of such a plea agreement. The FBI had no comment Wednesday on the letter....

Jim Riches, who lost his firefighter son Jimmy in 9/11, went to Guantanamo for pretrial hearings in 2009. He remains deeply frustrated that the case remains unresolved 14 years later.  He said he laughed bitterly when he opened the government’s letter Monday. “How can you have any faith in it?” Riches asked.  The update “gives us a little hope,” he said, but justice still seems far off.

“No matter how many letters they send, until I see it, I won’t believe it,” said Riches, a retired deputy fire chief in New York City.  He said he initially was open to the use of military tribunals but now feels that the process is failing and that the 9/11 defendants should be tried in civilian court.

The Obama administration at one point sought to do so, but the idea was shelved because of opposition from some victims’ relatives and members of Congress and city officials’ concerns about security costs.  As the 22nd anniversary of the attacks approaches, “those guys are still alive. Our children are dead,” Riches said.

August 17, 2023 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (10)

Tuesday, August 15, 2023

"The Capital Shadow Docket and The Death of Judicial Restraint"

The title of this post is the title of this new paper on SSRN authored by Jenny-Brooke Condon. Here is its abstract:

The Supreme Court’s recent approach to late-state execution challenges on its otherwise opaque shadow docket illuminates a court comfortable with playing an aggressive, decisive role in America’s system of state killing.  The Court would prefer for us to think of its role differently — as a passive, mere agnostic participant in a process defined by judicial restraint.  The Court promotes this vision when it invokes judicial restraint to justify its refusal to second-guess the cruelty of challenged execution methods or when Justices cite federalism-based rationales for refusing to delay state enforcement of death sentences.  Even the oft-quoted refrain that “death is different” — the notion that the Court proceeds carefully to enforce the Eighth Amendment as applied to capital punishment — advances a narrative of the Court as careful, constrained, and once removed. In this telling, judicial restraint and constitutional regulation of the death penalty go hand in hand.

And yet, on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained. For the last several years, the Court has regularly reversed lower court stays in a series of death cases presenting substantial issues.  While decisions addressing death penalty cases on the Court’s emergency orders docket is nothing new, the Court’s willingness to issue momentous, dispositive rulings in death cases through the shadow docket has emerged as an important feature of the Court’s constitutional regulation of the death penalty.  This Article contends that the Court’s capital shadow docket does not merely reflect changes in how the Court now approaches norms surrounding requests for emergency relief, as others have illuminated. The capital shadow docket is also a window into judicial regulation of the death penalty devoid of judicial restraint.

August 15, 2023 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Friday, August 11, 2023

Notable pitch to expedite federal appeals of condemned Pittsburgh synagogue shooter

This editorial from the editorial board of the Pittsburgh Post-Gazette caught my eye this past week. The piece is headlined "Expedite synagogue shooter's death penalty appeals," and here are excerpts:

Now that Pittsburgh synagogue shooter Robert Bowers has been sentenced to death, there’s no reason to further delay the administration of justice. The Department of Justice and the federal courts should take every step possible to expedite the appeals.

Further, the convicted murderer and his legal team, having failed in their desperate attempt to convince a Western Pennsylvania jury to spare him, should decline to make unnecessary appeals.  There is no question of his guilt, and the jury convincingly rejected the proposed mitigating factors, while the defendant showed no remorse.  Finally, there is no sign whatsoever of the kind of prosecutorial misconduct that would throw the conviction and sentence into doubt.  Further litigation will only waste time and money, and will further prolong the healing process for the victims’ families and community....

The robust death penalty appeals process exists to minimize the possibility of a false conviction, but in this case there is no doubt as to the defendant’s guilt.  After an exhaustive process, including weeks of testimony, a jury of his peers found him culpable. Further, the defense already pursued every possible stratagem, including causing years of delays, to avoid the death sentence.  They all failed.  Spending years relitigating these matters will not enhance the administration of justice.

Due to the Department of Justice’s decision to pursue the death penalty, followed by innumerable delay tactics by the shooter’s defense team, it has taken nearly five years to complete merely the first step in the process — conviction and sentencing.  These excruciating years have denied victims’ families and the wider community a measure of closure.  Now, the system — including the shooter’s defense team — can do right by those who carry the wounds of October 27, 2018, by expediting the appeals.

Not mentioned in this article is the fact that Attorney General Merrick Garland ordered a nationwide moratorium on federal executions that has been in place for more than two years and seems unlikely to be rescinded as long as Joe Biden is the Oval Office.  So, even if appeals were expedited for the condemned Pittsburgh synagogue shooter, it is very unlikely that he would be executed on an expeditious schedule.  Nevertheless, I think this editorial sensibly suggests that an extra "measure of closure" would come whenever standard appeals are exhausted for this condemned mass murderer even if he were not to be executed anytime soon.  And yet, even if serious efforts were made to expedite the appeals in this case, I suspect that it would likely still take many years to exhaust them.

August 11, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, August 03, 2023

Florida complete its fifth execution of 2023, more than its total in prior five years

As reported in this AP piece, a "Florida man who recently dropped all legal appeals was executed Thursday for the 1988 murder of a woman who was sexually assaulted, killed with a hammer and then set on fire in her own bed." Here is more:

James Phillip Barnes, 61, was pronounced dead at 6:13 p.m. following a lethal injection at Florida State Prison in Starke.... The 61-year-old inmate was sentenced to death for the murder of nurse Patricia “Patsy” Miller. It was the fifth execution in Florida this year....

Barnes was serving a life sentence for the 1997 strangulation of his wife, 44-year-old Linda Barnes, when he wrote letters in 2005 to a state prosecutor claiming responsibility for killing Miller years earlier at her condominium in Melbourne on Florida’s east coast.

Barnes represented himself in court hearings where he offered no defense, pleaded guilty to killing Miller and did not attempt to seek a life sentence rather than the death penalty. Miller, who was 41 when Barnes killed her on April 20, 1988, had some previous unspecified negative interactions with him, according to a jailhouse interview he gave German film director Werner Herzog. “There were several events that happened (with Miller). I felt terribly humiliated, that’s all I can say,” Barnes said in the interview....

Barnes killed his wife in 1997 after she discovered that he was dealing drugs. Her body was found stuffed in a closet after she was strangled, court records show. Barnes has claimed to have killed at least two other people but has never been charged in those cases....

Though unusual, condemned inmates sometimes don’t pursue every legal avenue to avoid execution. The Death Penalty Information Center reports that about 150 such inmates have been put to death since the U.S. Supreme Court reaffirmed the death penalty as constitutional in 1976.

According to this DPIC page, Florida had no executions between 2020 and 2022, and only two each year in the prior two years.  The single-year record for executions in the Sunshine state is eight, though it seems no more executions are as of now yet scheduled in the state.  There are more than 300 people on the state's death row, though I am un sure how many have exhausted their appeals.

August 3, 2023 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (4)

Wednesday, August 02, 2023

Pittsburgh synagogue shooter sentenced to death by federal jury

As reported in this AP article, the "gunman who stormed a synagogue in the heart of Pittsburgh’s Jewish community and killed 11 worshippers will be sentenced to death for perpetrating the deadliest antisemitic attack in U.S. history, a jury decided Wednesday."  Here is more on the notable federal sentencing jury determination:

Robert Bowers spewed hatred of Jews and espoused white supremacist beliefs online before methodically planning and carrying out the 2018 massacre at the Tree of Life synagogue, where members of three congregations had gathered for Sabbath worship and study. Bowers, a truck driver from suburban Baldwin, also wounded two worshippers and five responding police officers.

The same federal jury that convicted the 50-year-old Bowers on 63 criminal counts recommended Wednesday that he be put to death for an attack whose impacts continue to reverberate nearly five years later.  He showed little reaction as the sentence was announced, briefly acknowledging his legal team and family as he was led from the courtroom.  A judge will formally impose the sentence later.

Jurors were unanimous in finding that Bowers’ attack was motivated by his hatred of Jews, and that he chose Tree of Life for its location in one the largest and most historic Jewish communities in the U.S. so that he could “maximize the devastation, amplify the harm of his crimes, and instill fear within the local, national, and international Jewish communities.” They also found that Bowers lacked remorse....

The verdict came after a lengthy trial in which jurors heard in chilling detail how Bowers reloaded at least twice, stepped over the bloodied bodies of his victims to look for more people to shoot, and surrendered only when he ran out of ammunition.  In the sentencing phase, grieving family members told the jury about the lives that Bowers took — elderly people and intellectually disabled brothers among them — and the unrelenting pain of their loss. Survivors testified about their own lasting pain, both physical and emotional.

Through it all, Bowers showed little reaction to the proceeding that would decide his fate — typically looking down at papers or screens at the defense table — though he could be seen conversing at length with his legal team during breaks.  He even told a psychiatrist that he thought the trial was helping to spread his antisemitic message.

It was the first federal death sentence imposed during the presidency of Joe Biden, who pledged during his 2020 campaign to end capital punishment.  Biden’s Justice Department has placed a moratorium on federal executions and has declined to authorize the death penalty in hundreds of new cases where it could apply.  But federal prosecutors said death was the appropriate punishment for Bowers, citing the vulnerability of his mainly elderly victims and his hate-based targeting of a religious community....

Bowers’ lawyers never contested his guilt, focusing their efforts on trying to save his life.  They presented evidence of a horrific childhood marked by trauma and neglect.  They also claimed Bowers had severe, untreated mental illness, saying he killed out of a delusional belief that Jews were helping to cause a genocide of white people.  The defense argued that schizophrenia and brain abnormalities made Bowers more susceptible to being influenced by the extremist content he found online.

The prosecution denied mental illness had anything to do with it, saying Bowers knew exactly what he was doing when he violated the sanctity of a house of worship by opening fire on terrified congregants with an AR-15 rifle and other weapons, shooting everyone he could find.

The jury sided with prosecutors, specifically rejecting most of the primary defense arguments for a life sentence, including that he has schizophrenia and that his delusions about Jewish people spurred the attack.  Jurors did find that his difficult childhood merited consideration, but gave more weight to the severity of the crimes....

Survivors and other affected by the attack will have another opportunity to address the court — and Bowers — when he is formally sentenced by the judge.

August 2, 2023 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Tuesday, August 01, 2023

After a 6-3 SCOTUS vote to deny review, Missouri completes execution of child killer who claimed mentally incompetence

As reported in this AP piece, a "man who abducted a 6-year-old Missouri girl and beat her to death at an abandoned factory two decades ago was put to death Tuesday evening, shortly after the U.S. Supreme Court rejected a request to block the execution over arguments he was mentally incompetent." Here is more:

Johnny Johnson, 45, received a lethal injection dose of pentobarbital at a state prison in Bonne Terre and was pronounced dead at 6:33 p.m. CDT, authorities said.  He was convicted of the July 2002 killing of Casey Williamson in the St. Louis area suburb of Valley Park.

Johnson, who had schizophrenia, expressed remorse in a brief handwritten statement released by the Department of Corrections hours before being executed.... Among those witnessing Johnson’s execution were several members of the girl’s family and the former prosecutor and police investigator who handled his case.

The U.S. Supreme Court, with Justice Sonia Sotomayor and two other justices dissenting, rejected a late request to stay the execution. In recent appeals, Johnson’s attorneys have said the inmate has had delusions about the devil using his death to bring about the end of the world....  Former St. Louis County Prosecutor Bob McCulloch called the delusions “nonsense” and said Johnson inflicted “unspeakable horrors” upon Casey. “He’s got some issues — significant issues,” McCulloch said moments before witnessing the execution. But “he knew exactly what he was doing.”...

At Johnson’s trial, defense lawyers presented testimony showing their client — an ex-convict who had been released from a state psychiatric facility six months before the crime — had stopped taking his schizophrenia medication and was acting strangely in the days before the slaying.

In June, the Missouri Supreme Court denied an appeal seeking to block the execution on arguments that Johnson’s schizophrenia prevented him from understanding the link between his crime and the punishment.  A three-judge federal appeals court panel last week temporary halted execution plans, but the full 8th U.S. Circuit Court of Appeals reinstated it. Johnson’s attorneys then filed appeals to the U.S. Supreme Court centered around his competency to be executed.

Gov. Mike Parson on Monday denied a request to reduce Johnson’s sentence to life in prison.  The clemency petition by Johnson’s attorneys said Casey’s father, Ernie Williamson, opposed the death penalty.  But Casey’s great aunt, Della Steele, wrote an emotional plea to the governor urging the execution be carried out to “send the message that it is not okay to terrorize and murder a child.”  Steele said grief from Casey’s death led to destructive effects among other family members....

The execution was the 16th in the U.S. this year, including three previously in Missouri, five in Texas, four in Florida, two in Oklahoma and one in Alabama.

This ten-page dissent from the denial of a stay and from the denial of certiorari, authored by Justice Sotomayor and joined by Justices Kagan and Jackson, includes these passages at its outset and end:

The Supreme Court of Missouri, over a noted dissent, denied Johnson a competency hearing because it concluded that he had not made a substantial threshold showing of insanity.  That was error.  A federal District Court then denied Johnson habeas relief.  A panel of the Eighth Circuit stayed his execution and issued a certificate of appealability (COA), which would have permitted his competency claim to be fully briefed and argued on the merits.  But the en banc Eighth Circuit, over a dissent from three judges, vacated that stay and declined to issue a COA because it concluded that no reasonable jurist could disagree with the District Court.  That too was error.  Because reasonable jurists could, did, and still debate whether the District Court should have granted habeas relief, the Eighth Circuit should have authorized an appeal.  I would grant the petition for a writ of certiorari, summarily vacate the order of the Eighth Circuit denying a COA, and grant Johnson’s request for a stay of execution pending appeal....

The Court today paves the way to execute a man with documented mental illness before any court meaningfully investigates his competency to be executed.  There is no moral victory in executing someone who believes Satan is killing him to bring about the end of the world.  Reasonable jurists have already disagreed on Johnson’s entitlement to habeas relief.  He deserves a hearing where a court can finally determine whether his execution violates the Eighth Amendment.  Instead, this Court rushes to finality, bypassing fundamental procedural and substantive protections.  I respectfully dissent.

August 1, 2023 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (3)

Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty

In many cases, even high-profile ones, I tend to be disinclined to focus too much on a defendant's sentencing prospects until a plea or a jury conviction seems forthcoming.  But with historic and repeated indictments of a former President who is also a front-running presidential candidate, it is hard not to talk about sentencing possibilities as soon as there is an actual indictment.  And, via an email tonight on the CrimProf listserve, Professor Jack Chin flagged a particularly interesting added sentencing element flowing from this latest indictment of former Prez Trump:

So one of the offenses Trump was charged with today carries a possible death sentence.  The NYT reports that seven people died in connection with the January 6 riots, so the conspiracy against rights is death eligible.  I assume a death notice will not be filed, and oppose the death penalty in all cases myself, but, if one supports the death penalty in principle, would seven be enough?

18 USC 241:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

August 1, 2023 in Celebrity sentencings, Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (44)