Sentencing Law and Policy

Missouri completes execution of man who murdered two jail guards back in the year 2000

As reported in this AP piece, a "Missouri man who shot and killed two jailers nearly 23 years ago during a failed bid to help an acquaintance escape from a rural jail was executed Tuesday evening." Here is more:

Michael Tisius, 42, received a lethal injection of pentobarbital at the state prison in Bonne Terre and was pronounced dead at 6:10 p.m., authorities said.  He was convicted of the June 22, 2000, killings of Leon Egley and Jason Acton at the small Randolph County Jail....

Tisius’ lawyers had urged the U.S. Supreme Court to block the execution, alleging in appeals that a juror at a sentencing hearing was illiterate, in violation of Missouri law.  The court rejected that motion Tuesday afternoon.  The Supreme Court previously turned aside another argument — that Tisius should be spared because he was just 19 at the time of the killings.  A 2005 Supreme Court ruling bars executions of those under 18 when their crime occurred, but attorneys for Tisius had argued that even at 19, when the killings occurred, Tisius should have had his sentence commuted to life in prison without parole.

Advocates for Tisius had said he was largely neglected as a child and was homeless by his early teens.  His path to the death chamber began in 1999 when, as an 18-year-old, he was jailed on a misdemeanor charge of pawning a rented stereo system.  In June 2000, Tisius was housed on that charge at the same county jail in Huntsville with inmate Roy Vance. Tisius was about to be released, and court records show the men discussed a plan in which Tisius, once he was out, would help Vance escape.

Just after midnight on June 22, 2000, Tisius went to the jail accompanied by Vance’s girlfriend, Tracie Bulington.  They told Egley and Acton that they were there to deliver cigarettes to Vance.  The jailers didn’t know that Tisius had a pistol.  At trial, Bulington testified that she looked up and saw Tisius with the gun drawn, then watched as he shot and killed Acton.  When Egley approached, Tisius shot him, too.  Both officers were unarmed.  Tisius found keys at the dispatch area and tried to open Vance’s cell, but couldn’t. When Egley grabbed Bulington’s leg, Tisius shot him several more times.

Tisius and Bulington fled but their car broke down later that day in Kansas.  They were arrested in Wathena, Kansas, about 130 miles (210 kilometers) west of Huntsville.  Tisius confessed to the crimes.

Sid Conklin, now presiding commissioner of Randolph County, was a Missouri State Highway Patrol officer who investigated the killings in 2000. Conklin said the deaths of the two young jailers — both in their 30s — still haunt the community.  “I hope this brings closure for all citizens of Randolph County,” said Conklin, who witnessed the execution.

Another now-retired highway patrol investigator, Randy King, described the jailers as “good, everyday people trying to make a living.” “I pray for the guy’s (Tisius’) soul, but it’s been 23 years and it’s time for justice to be served,” King said.  He also witnessed the execution.

Bulington and Vance are serving life sentences on murder convictions....

The execution was the 12th in the U.S. this year, and the third in Missouri. Only Texas, with four, has executed more people than Missouri this year.

New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more

The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans.  For full context and coverage, everyone should check out the full piece.  Here are just a few snippets that especially caught my eye:

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons.  We worked on the original [Sentencing Commission] guidelines.  We were talking about recidivism.  And I said, “Well, Norman, you’ve had years of experience.  You're very, very respected. If it were up to you, what would you do to reduce recidivism rates?”  And he said, as I recall, “To be honest, I don't know.”

And so people have all kinds of ideas, and it's worth trying different ones.  But it's hard to do.  It's hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places.  So how well has that succeeded?  Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better....

[The death penalty] is so unfairly administered.  There's neither rhyme nor reason.  The whole point of this criminal justice system is fairness. Is justice.  That's why it's called “criminal justice.”  And that is not an oxymoron, at least in theory.  So when I see that time after time, after time — I'm not saying “You're all innocent.”  But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty.  I want to do something, if I'm going to do this, that really explains what I've seen.  And that's what I tried to do in Glossip.  And it tries to explain to other people, who can explain it to state legislatures.  And all it is, is what I've seen over a couple of decades.  And by the way, it's going to get awful expensive.  Why reconsider it?  Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

Former Alabama Govs now urge the commutation of most of Alabama's death row

Through this recent Washington Post opinion piece, headlined "We oversaw executions as governor. We regret it.", former Alabama governors Robert Bentley and Don Siegelman explain why they would now be eager to commute most of the state's death row. Here are excerpts from the start and end of the piece:

Alabama has 167 people on death row, a greater number per capita than in any other state. As far as the two of us are concerned, that is at least 146 people too many. Here’s why.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life....

As governors, we had the power to commute the sentences of all those on Alabama’s death row to life in prison. We no longer have that constitutional power, but we feel that careful consideration calls for commuting the sentences of the 146 prisoners who were sentenced by non-unanimous juries or judicial override, and that an independent review unit should be established to examine all capital murder convictions.

We missed our chance to confront the death penalty and have lived to regret it, but it is not too late for today’s elected officials to do the morally right thing.

This piece perhaps provides yet another data point in support of the so-called "Marshall hypothesis," the idea Justice Thurgood Marshall articulated in his Furman opinion that persons learning more about the administration and effects of capital punishment will come to reject it.  It also provides another data point for the reality that it seems much easier for politicians to turn against the death penalty once they are former office holders.

A couple of notable new international death penalty stories

A couple of new headlines and Associated Press stories concerning the application of the death penalty worldwide caught my attention this morning.  Here are links and the essential:

"Singapore hangs 2nd citizen in 3 weeks for trafficking cannabis despite calls to halt executions":

Singapore on Wednesday hanged another citizen for trafficking cannabis, the second in three weeks, as it clung firmly to the death penalty despite growing calls for the city-state to halt drug-related executions....  Under Singapore laws, trafficking more than 500 grams (1.1 pounds) of cannabis may result in the death penalty....

Singapore executed 11 people last year for drug offenses after a two-year hiatus due to the COVID-19 pandemic.  The hanging of one particular Malaysian believed to be mentally disabled sparked an international outcry and brought the country's capital punishment under scrutiny for flouting human rights norms.

"Executions worldwide rose dramatically in 2022, Amnesty International reports":

Executions worldwide increased by 53% in 2022 from a year earlier, with a significant rise in Iran and Saudi Arabia, Amnesty International said in an annual report Tuesday that also criticized Indonesia as having one of the highest numbers of new death sentences in Asia.

Amnesty said 70% of the executions in the Middle East and North Africa were carried out in Iran, where their numbers rose by 83% from 314 in 2021 to 576 in 2022.  The number of executions in Saudi Arabia tripled from 65 in 2021 to 196 in 2022.

Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).

"The Eighth Amendment's Time to Shine; Previewing Florida's Imminent Constitutional Crisis in Capital Punishment"

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

In April 2023, Florida Governor DeSantis enacted legislation that lowers the jury vote necessary to impose a sentence of death in the state to 8-4.  The new statute removes the procedural safeguards that were implemented after the U.S. Supreme Court held in 2016 that Florida's capital sentencing scheme violated defendants' right to jury trial under the Sixth Amendment.

Litigation about the constitutionality and application of the new statute has already started and will likely continue for a while until the full effect of the statute is determined.  This Essay previews some of the issues that will be litigated and forecasts that the Eighth Amendment will be the star of the show in this Act of the play on Florida’s constitutional crises in capital punishment. 

US Supreme Court stays the execution of Richard Glossip

As reported in this AP article, the "Supreme Court on Friday blocked Oklahoma from executing death row inmate Richard Glossip for his role in a 1997 murder-for-hire after the state’s attorney general agreed Glossip’s life should be spared." Here is more:

Glossip had been scheduled to be put to death on May 18 despite statements by new Oklahoma Attorney General Gentner Drummond that Glossip did not receive a fair trial.  An Oklahoma appeals court subsequently upheld Glossip’s conviction and the state’s pardon and parole board deadlocked in a vote to grant him clemency.

The high court put the execution on hold indefinitely while it reviews the case.  Justice Neil Gorsuch took no part in the decision, presumably because he dealt with the case earlier as an appeals court judge.

“There is nothing more harrowing than the thought of executing a man who the state now admits has never received a fair trial,” Glossip attorney Don Knight said in a statement.  “Our hope is that the court will reverse the decision of the (Oklahoma Court of Criminal Appeals) and vacate Mr. Glossip’s conviction once and for all.”

Drummond, a Republican, said in a statement he was grateful for the high court’s decision. “I will continue working to ensure justice prevails in this important case,” he said.  In a rare move, Drummond, the state’s top prosecutor, supported a high-court reprieve for Glossip, telling the justices, “Glossip’s trial was unfair and unreliable.”

But Drummond also has said he does not believe Glossip is innocent of the murder-for-hire killing of Glossip’s former boss, Barry Van Treese, in 1997. Another man, Justin Sneed, admitted robbing and killing Van Treese after Glossip promised to pay him $10,000. Sneed received a life sentence in exchange for his testimony and was the key witness against Glossip....

Former Oklahoma County District Attorney David Prater has long said he believes Glossip persuaded Sneed to kill Van Treese. He said that while Sneed’s testimony was most compelling, there was plenty of evidence to corroborate it. “When police came to talk to Glossip about Van Treese’s whereabouts, he directed him away from the room he knew Van Treese was in,” Prater said Friday. “At any point, Glossip had the opportunity to tell the police that Sneed did this. He never did that. He even helped Sneed clean up everything.”

Prater said Sneed and Glossip also both had a large amount of cash that Prater said they stole from Van Treese’s car. “In light of Gentner Drummond’s position regarding the stay, I don’t feel like the Supreme Court had much of a choice,” Prater said. “But the truth will come out.”

Two separate independent investigations have revealed problems with the prosecution’s case. Drummond said Sneed lied on the stand about his psychiatric condition and his reason for taking the mood-stabilizing drug lithium, and that prosecutors knew Sneed was lying. Also, evidence was destroyed, Drummond said.

Some Republican state lawmakers who support the death penalty have joined the growing chorus of Glossip supporters who are seeking to overturn his conviction. “We’re just ecstatic,” state Rep. Kevin McDugle said in a brief telephone interview on Friday.

Glossip’s case has been to the Supreme Court before. He was given a reprieve in 2015, although the court later ruled 5-4 against him in a case involving the drugs used in lethal executions.  Glossip has been just hours away from being executed three separate times. His last scheduled execution, in September 2015, was halted just moments before he was to be led to the death chamber when prison officials realized they had received the wrong lethal drug. That mix-up helped prompt a nearly seven-year moratorium on the death penalty in Oklahoma.

A few prior recent relates posts:

• Oklahoma Gov grants 60-day execution stay for Richard Glossip while courts consider innocence claim 
• New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction
• Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

Florida completes execution of murderer nearly 40 years after his (repeat) crime

As reported in this AP piece, a "Florida man was executed Wednesday for breaking into a woman’s home and stabbing her to death in 1986, a crime committed months after he was released from prison for a rape." Here are more details:

Darryl B. Barwick, 56, was pronounced dead at 6:14 p.m. Wednesday following a lethal injection at Florida State Prison, the office of Republican Gov. Ron DeSantis said. The U.S. Supreme Court denied the inmate’s final appeal for a stay of execution earlier in the day.

After being brought into the death camber, Barwick said, “I can’t explain why I did what I did. It’s time to apologize to the family ... I’m sorry.” He added that he state needs to show more compassion and kindness for people, criticizing Florida’s sentencing of teenagers to life in prison....

Barwick didn’t meet in person with family members in his final hours, but had spoken with them by phone in recent days, prison officials said ahead of the 6 p.m. execution time. Officials said no relatives of the victim had arranged to witness the execution....

Barwick had confessed to killing 24-year-old Rebecca Wendt in her Panama City apartment on March 31, 1986, after watching her sunbathing outside and following her back to her room. He said he intended to rob Wendt but then killed her as she resisted, stabbing her 37 times as she tried to fight him off....

He was convicted of first-degree murder, armed burglary, attempted sexual battery and armed robbery in November 1986, and sentenced to death two months later on the jury’s 9-3 recommendation. The Florida Supreme Court threw out that conviction in 1989 because of prosecutorial misconduct. Barwick was again convicted at his 1992 retrial, and that jury unanimously recommended death.

Barwick killed Wendt less than three months after he was released from prison for raping a 21-year-old woman at knifepoint, according to court records. In his confession for Wendt’s killing, Barwick said he stabbed her because he did not want to go back to prison.

DeSantis signed Barwick’s death warrant last month. It was the third execution conducted in Florida this year after a hiatus dating back to 2019. It also was the state’s 102nd execution since the reinstatement of the death penalty in 1976.

With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?

Fifteen years ago, in Kennedy v. Louisiana, 554 U.S. 407 (2008), the US Supreme Court decided, by a 5-4 vote, that the Constitution prohibits a state from imposing the death penalty for the crime of child rape.  In the words of the majority opinion: "Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."

In Florida, a multi-month effort to push back on this doctrine culminiated today in the signing of a new law to permit sentencing a child rapist to death.  Here are the basics from this USA Today piece:

Florida Gov. Ron DeSantis has signed into law a measure making child rape subject to the death penalty, defying a United States Supreme Court ruling. "In Florida, we stand for the protection of children," DeSantis said at a Monday press conference in Brevard County. "We think that in the worst of the worst cases the only appropriate punishment is the ultimate punishment."

But, in 2008, U.S. Supreme Court justices issued a 5-4 ruling barring states from imposing the death penalty for the rape of a child, when the crime does not involve a child’s death. The court rules that applying the death penalty in such cases would amount to “cruel and unusual punishment.”

DeSantis, though, has said he thinks the current conservative-majority U.S. Supreme Court may be willing to revisit the earlier ruling. "We think that decision was wrong," he said at the press conference. "This bill sets up a procedure to be able to challenge that precedent."

I see that the new Florida death penalty law, House Bill 1297, states expressly that "a sentence of death shall be imposed under this section notwithstanding existing case law which holds such a sentence is unconstitutional under the Florida Constitution and the United States Constitution."  I suppose that provision helps to provide a means for a test case to emerge in which lower Florida (and federal habeas) courts would presumably feel obligated based on the Kennedy precedent to strike down a capital child rape sentence, but then Florida would keep appealing in the hope of getting the Supreme Court to take up the case and overrule Kennedy. 

In addition to wondering about the facts of any "Kennedy test case," I cannot help but wonder how long it might take to get to SCOTUS.  There are, surely, hundreds of cases of young child sexual abuse in Florida with the child under age 12 as required by this law.  But, while there will be death eligible cases right away, we would need a prosecutor to charge under this new law and a jury to return a death verdict and recommended sentence before the appeals get going in earnest.  And the appeals would surely take quite some time before SCOTUS would even have a chance to take up a challenge to Kennedy.

Notably, three of the four Justices in dissent in Kennedy are still on the Court (Justices Thomas, Alito and the Chief), while none of the Justices in the Kennedy majority on still on this Court.  I suspect Justice Gorsuch would be a vote to reverse Kennedy, and that Justices Sotomayor, Kagan and Jackson would not be.  I would guess that one, and perhaps both, of Justices Kavanuagh and Barrett would, perhaps on originalist grounds, reverse Kennedy.  But when might they get the chance and are many of the Justices really eager to take this up?  

Lengthy press series explores the modern history of the death penalty and executions in Arizona

Throughout this week, the Arizona Mirror has run a series of lengthy articles on the death penalty authored by journalist Michael Kiefer and defense attorney Dale Baich.  This set of pieces is called “Poorly Executed: How Arizona has failed at carrying out the death penalty,” which provides a sense of its main themes, and is described as "a five-part series exploring the modern history of the death penalty and executions in Arizona."  Here are headlines and links to the five pieces:

Part 1: Witness to an execution

Part 2: The ‘Golden Age of executions’ comes to an end

Part 3: IVs and ironies

Part 4: ‘The experiment failed,’ halting executions in Arizona

Part 5: The politics behind executions

"Gender, Violence, and the Death Penalty"

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

This article undertakes the first and only comprehensive analysis of gender-based violence (“GBV”) in the lives of all women currently on death row.  We examine the prevalence of GBV and how it has shaped the lives and affected the criminal prosecutions of women facing execution.  Our research reveals, for the first time, that almost every woman on death row in the United States has experienced GBV and that the great majority have experienced multiple incidents of GBV.

Further, our research shows that both in the United States and around the world, defense attorneys frequently fail to present evidence of GBV in women’s capital trials.  When they do introduce such evidence, they fail to fully explain the nature of their clients’ victimization and the harm they have suffered as a result.  Moreover, we show that prosecutors frequently rely on gendered tropes to discredit women’s accounts of violence such as childhood sexual abuse, rape, and intimate partner violence.  Consequently, those who sentence women to die rarely comprehend the extensive trauma that the women have endured throughout their lives, and how that trauma relates to their legal and moral culpability.

Three Justices dissent from denial of cert in Tennessee felony-murder capital case

The Supreme Court this morning issued this order list with a lot of certiorari denials (and grants in two related cases involving government social-media activity).  There was one notable statement in dissent from the denial of certiorari by Justice Sotomayor, joined by Justices Kagan and Jackson, in Burns v. Mays, No. 22–5891.  The seven-page dissent starts this way:

Petitioner Kevin Burns, a defendant sentenced to death for felony murder, brought a 28 U.S.C. §2254 petition claiming inadequate assistance of counsel at the penalty phase of his trial.  Burns asserts that counsel failed to present mitigating evidence tending to show that he did not shoot either of the two victims killed during a robbery in which he participated. Such evidence does not bear on Burns’ guilt, since his participation in the underlying robbery suffices to render him guilty of felony murder.  Evidence that Burns did not pull the trigger, however, was plainly relevant to the jury’s determination whether to sentence him to death.  The Sixth Circuit avoided this obvious conclusion only by mischaracterizing Burns’ claim as being about counsel’s failure to introduce residual doubt evidence (i.e., evidence that Burns was not, in fact, guilty of felony murder).  From there, the Sixth Circuit concluded that the claim must fail because this Court has never established a right to introduce residual doubt evidence at sentencing.

Burns argues, and the State does not contest, that the Sixth Circuit’s analysis turned on two erroneous legal assumptions and clearly conflicts with several decisions of this Court.  Burns asks this Court to take summary action to correct these fundamental legal errors so that his claim may be fairly considered before the State executes him. The Court, however, declines to intervene.  I would summarily vacate the error-laden (and precedential) decision below and remand for further consideration of Burns’ claim.  I respectfully dissent from the Court’s failure to do so.

"Abolition Then and Now: The Role of Furman's Failure in Today's Abolition Success"

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

On the fiftieth anniversary of Furman v. Georgia, one cannot help but draw comparisons between the sociopolitical context in which we find ourselves today, and the one in which the Justices found themselves in 1972.  Once again, the death penalty is dying — history, it would seem, is repeating itself.  But beneath these surface similarities lie important differences between the two eras, and what they mean for the larger abolition story.  Abolition today is not a story about the highest court in the land; rather, it is a story about a movement from the bottom-up, with states ending the death penalty on their own.  Instead of aiming high, abolitionists are aiming low.  In two ways, Furman itself played a part in this dramatic shift.  First, the backlash to Furman taught abolitionists that the Supreme Court’s “help” may do more harm than good, halting change already in progress, and that the Court would be a fickle friend. Hence the lesson to aim low.  Second, the Supreme Court’s reaction to Furman’s backlash in Gregg v. Georgia inadvertently set in motion the means to make this dramatic shift happen.  Gregg’s attempt to tame the death penalty created a mass of complicated doctrine, and that gave rise to a cadre of specialized capital defenders to navigate it. Those defenders are the foot soldiers of today’s abolition movement, killing the death penalty by saving one life at a time.  The modern path to abolition is not without its downsides, but the upside to states ending the death penalty on their own is that this time when the death penalty dies, it may well stay that way for good.

"The Illusion of Heightened Standards in Capital Cases"

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

The death penalty has gained its legitimacy from the belief that capital prosecutions are more procedurally rigorous than noncapital prosecutions.  This Article reveals how a project of heightened capital standards, set in motion when the Supreme Court ended and then revived the death penalty, was set up to fail.

In establishing what a constitutional death penalty would look like, the Court in 1976 called for heightened standards of reliability in capital cases.  In the late 1970s and early 80s, the Supreme Court laid out specific constitutional procedures that must be applied in capital cases, and left the door open for the Eighth Amendment to do even more. In the decades that followed, state and federal courts have fueled a perception of heightened procedural rigor in capital cases by referring repeatedly to the heightened standards applicable in capital cases.

However, a review of courts’ application of a standard of “heightened reliability” reveals that (1) courts routinely use the language of “heightened” standards while simultaneously applying exactly the same constitutional tests that are used in noncapital cases and demonstrating no serious effort to tie procedural rigor to the severity of punishment; and (2) even more problematic, some courts have shown a willingness to use the “heightened reliability” language to justify a lesser procedural protection for capital defendants than that applied to noncapital cases — a perverse application of what was clearly intended to be an added measure of assurance that the death penalty is reserved only for those who are truly guilty and who are the most culpable.

This decades-long failure to observe meaningfully heightened constitutional standards calls into question the death penalty’s institutional legitimacy and raises particular concerns in light of current Supreme Court trends.

Oklahoma Court of Criminal Appeals, rejecting state AG's motion, refuses to set aside Richard Glossip's capital conviction

As detailed in this prior post, earlier this month, Oklahoma's Attorney General filed a motion to vacate the conviction of death row inmate Richard Glossip in the Oklahoma Court of Criminal Appeals.  That motion today was rejected, as detailed in this local article headlined "Oklahoma court won't overturn Richard Glossip's conviction; execution date set."  Here are the details:

A state appeals court has rejected a request to vacate the conviction of a high-profile death row inmate. The Oklahoma Court of Criminal Appeals on Thursday said it will not vacate Richard Glossip’s murder conviction following a request from Attorney General Gentner Drummond.

After an independent review of Glossip's case cast doubt on the death row inmate's murder conviction, Drummond asked the appeals court to vacate Glossip's conviction. Drummond said he will review the ruling and consider his next steps. He expressed opposition to the state moving forward with Glossip's execution.

"While I respect the Court of Criminal Appeals’ opinion, I am not willing to allow an execution to proceed despite so many doubts," Drummond said in a statement. "Ensuring the integrity of the death penalty demands complete certainty."

An attorney for Glossip said he will file an appeal with the U.S. Supreme Court. Don Knight, Glossip’s attorney, said it is “unconscionable” for the Oklahoma appeals court to force the state to move forward with this execution....

Glossip was convicted of first-degree murder for allegedly orchestrating the 1997 beating death of his Glossip has long maintained that he was framed for Van Treese’s murder. His attorneys claim that their client was set up by a motel maintenance man who they argue killed Van Treese during a botched robbery and shifted the blame to avoid getting the death penalty himself.

Glossip’s fifth application for post-conviction relief provides no new information to convince the court to overturn his conviction, according to the 5-0 opinion written by Judge David Lewis. “This case has been thoroughly investigated and reviewed in numerous appeals,” Lewis wrote in the majority opinion. "Glossip has been given unprecedented access to prosecution files, including work product, yet he has not provided this Court with sufficient information that would convince the Court to overturn the jury’s determination that he is guilty of first-degree murder.”...

The appeals court also refused to delay Glossip's execution any further. Glossip is set to die by lethal injection on May 18.

The full 25-page ruling of the Oklahoma Court of Criminal Appeals is available at this link.

In 6-3 ruling, SCOTUS rules for Texas capital defendant concerning statute of limitation for seeking DNA testing in § 1983 action

The Supreme Court handed down a notable criminal procedure ruling this morning in Reed v. Goertz, No. 21-422 (S. Ct. April 19, 2023) (available here). Justice Kavanaugh wrote the opinion for the Court which starts this way:

In many States, a convicted prisoner who still disputes his guilt may ask state courts to order post-conviction DNA testing of evidence.  If the prisoner’s request fails in the state courts and he then files a federal 42 U.S.C. §1983 procedural due process suit challenging the constitutionality of the state process, when does the statute of limitations for that §1983 suit begin to run?  The Eleventh Circuit has held that the statute of limitations begins to run at the end of the state-court litigation denying DNA testing, including the state-court appeal. See Van Poyck v. McCollum, 646 F. 3d 865, 867 (2011).  In this case, by contrast, the Fifth Circuit held that the statute of limitations begins to run when the state trial court denied DNA testing, notwithstanding a subsequent state-court appeal. See 995 F. 3d 425, 431 (2021). We conclude that the statute of limitations begins to run at the end of the state-court litigation.

Justice Thomas authored a lengthy solo dissent that starts this way:

The Texas Court of Criminal Appeals (“CCA”) affirmed the denial of petitioner Rodney Reed’s state-law motion for postconviction DNA testing. Reed petitioned this Court for certiorari, arguing that the CCA’s interpretation and application of the relevant state law violated his federal due process rights. After we denied his petition, Reed repackaged it as a complaint in Federal District Court, naming respondent (the Bastrop County District Attorney) as a placeholder defendant. Like his earlier certiorari petition, Reed’s complaint assails the CCA’s state-law reasoning as inconsistent with due process, and it seeks a declaration that the CCA’s interpretation and application of state law was unconstitutional.

Reed’s action should be dismissed for lack of subjectmatter jurisdiction. Federal district courts lack appellate jurisdiction to review state-court judgments, and Reed’s action presents no original Article III case or controversy between him and the district attorney. Because the Court erroneously holds that the District Court had jurisdiction over Reed’s action, I respectfully dissent.

Justice Alito wrote a shorter dissent joined by Justice Gorsuch that has these opening pragraphs:

As the Court notes and the parties agree, the statute of limitations for Reed’s claim is two years. Ante, at 4; Brief for Petitioner 17; Brief for Respondent 17. Reed filed his complaint on August 8, 2019, and the lower courts held that this was too late. The question before us is when the 2-year statute of limitations began to run, that is in legal parlance, when Reed’s claim “accrued.” As the parties agree, the general rule is that a claim accrues when the plaintiff has “a complete and present cause of action,” Wallace v. Kato, 549 U. S. 384, 388 (2007) (internal quotation marks omitted). Reed contends that his claim did not accrue until the Texas Court of Criminal Appeals (CCA) denied his petition for rehearing on October 4, 2017, and thus refused to retract the interpretation of Article 64 that the court had unanimously adopted on April 12, 2017. Goertz, on the other hand, argues that Reed’s claim accrued no later than the date of the CCA’s April 12 decision, and because that date preceded the federal lawsuit by more than two years, Goertz maintains that we should affirm the Fifth Circuit’s decision that Reed’s complaint was filed too late.

As I will explain, there is room for debate about exactly when Reed’s DNA testing claim accrued, but in my view, the notion that this did not take place until rehearing was denied is clearly wrong.

Rounding up some notable recent death penalty policy and practice stories

Most weeks bring a number of press pieces on a number of capital punishment topics.  But so many death penalty headlines and stories caught my eye in the last few days that I decided only this round-up allowed me to keep up with a bunch of notable stories:

From ABC11, "NC faith leaders ask Governor Cooper to commute sentences of death row inmates"

From Arizona Capitol Times, "Court reinstates death penalty for man who killed University of Arizona professor"

From Cleveland.com, "Ohio’s broken death-penalty system may be wasting hundreds of millions of dollars, AG warns"

From The Hill, "Pence calls for expedited death penalty for mass shooters during NRA speech"

From MassLive, "10 years on, Boston Marathon bomber at the center of death penalty debate"

From the National Catholic Reporter, "Catholic governor calls on Louisiana lawmakers to abolish the death penalty as 'a pro-life state'"

From the Pittsburgh Post-Gazette, "The sisters of two Tree of Life shooting victims want the death penalty: ‘We owe it to our brothers’"

From Reuters, "Florida to allow death penalty with 8-4 jury vote instead of unanimously"

Florida complete its 100th modern execution ... of double murderer 34 years after crime

As reported in this AP article, "Florida executed a man known as the “ninja killer” on Wednesday for the 1989 slayings of a couple visiting the state from New Jersey." Here is more:

Louis Bernard Gaskin, 56, was pronounced dead at 6:15 p.m. after receiving a lethal injection, the governor’s office said. He was convicted of killing Robert Sturmfels, 56, and Georgette Sturmfels, 55, on Dec. 20, 1989, in their Flagler County winter home on Florida’s northeastern coast....

The execution, scheduled for 6 p.m., started without delay.  When asked if he had any final statement, Gaskin said: “Justice is not about the crime. It’s not about the criminal. It’s about the law.”  Gaskin then referred to the legal proceedings surrounding his case and the appeals and finished his statement saying, “Look at my case.”...

Republican Gov. Ron DeSantis has been signing death warrants at a rapid pace this year as he prepares his widely expected presidential campaign.  He oversaw only two executions in his first four years in office, both in 2019.

This execution came six weeks after Donald Dillbeck, 59, was put to death for the 1990 murder of Faye Vann, 44, in Tallahassee, and three weeks before the scheduled execution of Darryl B. Barwick for slaying Rebecca Wendt, 24, in 1986 in Panama City.  Barring any stays for Barwick, it will be the shortest period that three executions have been carried out in Florida since three were put to death within 36 days in 2014 under former Gov. Rick Scott, also a Republican.

Gaskin’s death marked the state’s 100th execution since the reinstatement of the death penalty in 1976. There are an additional 297 people on Florida’s death row, which is located at Florida State Prison, about 40 miles southwest of Jacksonville.

Gaskin, who was dubbed the “ninja killer” because he wore all-black ninja clothing during the crimes, shot his victims with a .22-caliber rifle, investigators said.  He was convicted of first-degree murder.  Property that he stole from the Sturmfels’ home — a clock, two lamps and a videocassette recorder — was found at his residence and were intended to be Christmas gifts for his girlfriend, according to investigators.  He was also convicted of armed robbery, burglary and the attempted murder that same night of another couple who lived nearby....

Jurors voted 8-4 in 1990 to recommend the death sentence, which the judge accepted.  Florida law now requires a unanimous jury vote for capital punishment, although the Legislature could send DeSantis a bill this week that would allow 8-4 jury recommendations for capital punishment.  The state and U.S. supreme courts have rejected appeals Gaskin filed since his death warrant was signed.  The latest denial came Tuesday.

New Oklahoma Attorney General formally moves to set aside Richard Glossip's capital conviction

As reported in this local article, Oklahoma "Attorney General Gentner Drummond is releasing the final report from Independent Counsel on the same day he has filed a motion to vacate the conviction of death row inmate Richard Glossip." Here is more:

The motion was filed with the Oklahoma Court of Criminal Appeals (OCCA) three days after the Independent Counsel Rex Duncan submitted his findings from the comprehensive review ordered by Drummond. While the report did not declare Glossip is innocent, it documented multiple instances of error that cast doubt on the conviction, even though many of these issues have been previously addressed by the OCCA.

“The State has reached the difficult conclusion that justice requires setting aside Glossip’s conviction and remanding the case to the district court,” states the April 6 motion. Drummond said his final decision in this matter is based on a careful consideration of the law and what he deemed is in the best interests of justice....

Glossip has been on Oklahoma’s death row for nearly 25 years. He was initially charged with accessory to murder on Jan. 15, 1997, after the murder of his boss, Barry Van Treese. A co-worker of Glossip’s confessed to beating Van Treese to death in an Oklahoma City motel room. As part of a plea agreement to avoid the death penalty, the co-worker testified that Glossip offered to pay him for the killing.

As a result, Glossip was charged and eventually convicted of first-degree murder in 1998. The co-worker, who was the prosecution’s key witness against Glossip and the murderer of Van Treese, was convicted and received a sentence of life without the possibility of parole.

The Oklahoma Court of Criminal Appeals later overturned Glossip’s conviction for ineffective assistance of counsel. He was convicted and sentenced to death again at a 2004 retrial.

With the Glossip case long dogged by doubt and controversy, Drummond sought answers shortly after taking office. He quickly learned that the State had long withheld a box of materials from Glossip’s defense team. Drummond promptly provided access to those materials, referred to as “Box 8,” and appointed an Independent Counsel to conduct a comprehensive review of the case. Box 8, and the findings from that review, formed much of the basis for the State’s motion to vacate Glossip’s conviction and remand to the district court....

The motion can be read here.

The Independent Counsel report can be read here.

As many readers of this blog likely know, Richard Glossip's case has long been in the headline not only because of his wrongful concviction claims, but also because he was the capital defendants whose Eighth Amendment challenges to certain lethal injection execution protocols were rebuffed in the 2015 Supreme Court ruling in Glossip v. Gross.

Three Justices dissent from denial of cert in Louisiana capital case based on Brady issue

The Supreme Court issued this morning another order list with no new grants of certiorari and lots of cert denials.  One of those cert denials, in the Louisiana capital case of Brown v. Louisiana, generated a short dissent by Justice Jackson, which was joined by Justices Sotomayor and Kagan. Here are excerpts from the dissent:

The central question before this Court is whether the prosecution violated Brown’s due process rights by failing to disclose this confession [by Edge, a codefendant].  Brady v. Maryland, 373 U.S. 83 (1963).  Because the evidence was plainly “favorable” and “material” to Brown’s penalty phase, id., at 87, I would have granted certiorari and summarily reversed....

The Louisiana Supreme Court nevertheless held that Edge’s confession was not favorable to Brown because it did not specify who actually killed the victim, nor did it expressly state that Brown was “not present or not involved.” 347 So. 3d, at 836.  The requirement that the withheld evidence must speak to or rule out the defendant’s participation in order for it to be favorable is wholly foreign to our case law....

We have repeatedly reversed lower courts — and Louisiana courts, in particular — for similar refusals to enforce the Fourteenth Amendment’s mandate that favorable and material evidence in the government’s possession be disclosed to the defense before trial. See, e.g., Kyles, 514 U.S., at 422, 450–453; Smith, 565 U.S., at 76–77; Wearry, 577 U.S., at 392–394, 396.  This Court has decided not to grant Brown’s petition for certiorari, but that determination should in no way be construed as an endorsement of the lower court’s legal reasoning.  In my view, the Louisiana Supreme Court misinterpreted and misapplied our Brady jurisprudence in a manner that contravenes settled law.

Another push to try to end the death penalty in Ohio

As reported in this local piece, there is another effort afoot to abolish capital punishment in the Buckeye state.  The article is fittingly headlined "Lawmakers call for an end to capital punishment in Ohio. Again."  Here are excerpts:

Although Ohio hasn't executed anyone since 2018, a dozen state senators are banding together to abolish the death penalty. It is unclear if they'll garner enough support to end capital punishment in Ohio.

The first major hurdle is Senate President Matt Huffman, R-Lima, who opposes ending the death penalty. However, Huffman said he would hold a vote on the bill if a majority of the 33-member Senate wanted it.

The effort to end the death penalty is a familiar one for State Sen. Nickie Antonio, D-Lakewood. She has sponsored abolition bills every session for the past dozen years. "I believe it's indeed time for the state of Ohio to take the pragmatic, economically prudent, principled step to end capital punishment, which has been found to be expensive, impractical, unjust, inhumane and in the past even erroneous," Antonio said Tuesday at a statehouse news conference. She noted 11 people on Ohio Death Row have been exonerated.

Antonio said that every year she introduces the abolition bill, she has more bipartisan support. This time, she's starting out with five Republican and seven Democratic co-sponsors.  State Sens. Steve Huffman, R-Tipp City, and Michele Reynolds, R-Canal Winchester, both said their religious faith spurred them to join Antonio's effort. Steve Huffman is Matt Huffman's cousin.

"I believe that life begins at conception and ends at natural death. Like many people of faith, I believe that all human lives are deserving of dignity... even people that have committed heinous crimes," Reynolds said. The bill would replace capital punishment sentences with life in prison without parole.

Currently, there are 138 people on Ohio Death Row.  The state has executed 56 men since February 1999 when it resumed executions.  No executions have been carried out since Republican Mike DeWine became governor in January 2019.  DeWine has postponed executions, citing issues in obtaining supplies of lethal injection drugs.

DeWine, who voted for the current law when he was a state senator, has remained mum about his current personal view of the death penalty.  County prosecutors and Ohio Attorney General Dave Yost support the death penalty. Yost, a Republican, issued a statement that said Ohio's capital punishment system fails to deliver justice to families of murder victims.

Some prior related posts:

• Fascinating death penalty development in Ohio (from 2012)
• Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty? (from 2019)
• Can a new conservative group help get the death penalty abolished in Ohio? (from 2020)
• New poll indicates considerable support for death penalty repeal among Ohio GOP legislators (from 2022)

Continuing criticism for Prez Biden's Justice Department for attending to the rule of (capital) law

Last month, as discussed here, the Washington Post published a lengthy article engaging in considerable hand-wringing about federal death penalty developments under the headline "Justice Department standards on federal death penalty called confusing."  This month, the AP has this lengthy article with some similar hand-wringing under the headline "Biden’s Justice Dept. keeps hard line in death row cases."  Here are excerpts:

Death penalty opponents expected Biden to act within weeks of taking office to fulfill his 2020 campaign promise to end capital punishment on the federal level and to work at ending it in states that still carry out executions. Instead, Biden has taken no steps toward fulfilling that promise.

But it’s not just inaction by Biden.  An Associated Press review of dozens of legal filings shows Biden’s Justice Department is fighting vigorously in courts to maintain the sentences of death row inmates, even after Attorney General Merrick Garland temporarily paused executions.  Lawyers for some of the over 40 death row inmates say they’ve seen no meaningful changes to the Justice Department’s approach under Biden and Trump.

“They’re fighting back as much as they ever have,” said Ruth Friedman, head of the defender unit that oversees federal death row cases.  “If you say my client has an intellectual disability, the government ... says, ‘No, he does not.’ If you say ‘I’d like (new evidence),’ they say, ‘You aren’t entitled to it.’”

Administration efforts to uphold death sentences for white supremacist Dylann Roof, who killed nine Black church-goers, and Boston Marathon bomber Dzhokhar Tsarnaev are better known. Lower-profile cases ... have drawn less scrutiny.  The Justice Department confirmed that since Biden’s inauguration it hasn’t agreed with a single claim of racial bias or errors that could lead to the overturning of a federal death sentence....

In announcing the 2021 moratorium, Garland noted concerns about how capital punishment disproportionately impacts people of color and the “arbitrariness” — or lack of consistency — in its application.  He hasn’t authorized a single new death penalty case and has reversed decisions by previous administrations to seek it in 27 cases.

Garland recently decided not to pursue death for Patrick Crusius, who killed nearly two dozen people in a racist attack at a Texas Walmart. His lawyers have said he had “severe, lifelong neurological and mental disabilities.” He could still be sentenced to death under state charges.  Garland also took the death penalty off the table for a man accused in 11 killings as part of a drug trafficking ring.... 

Prosecutors decide before trial whether or not to seek the death penalty, and current death row inmates were all tried under previous administrations. Prosecutors have less leeway after a jury’s verdict than before trial.  Court challenges after trials are also often not about whether it was appropriate to pursue the death penalty, but whether there were legal or procedural problems at trial that make the sentence invalid.  “It’s a very different analysis when a conviction has been entered, a jury has spoken,” said Nathan Williams, a former Justice Department lawyer who prosecuted Roof. “There has to be a respect for the appellate process and the legal approaches that can be taken.”

A Justice Department spokesman said prosecutors “have an obligation to enforce the law, including by defending lawfully obtained jury verdicts on appeal.” The department is working to ensure “fair and even-handed administration of the law in capital-eligible cases,” he said.  Inmate lawyers dispute that prosecutors have no choice but to dig in their heels, saying multiple mechanisms have always existed for them to fix past errors.

Justice officials announced this month that they wouldn’t pursue death in the resentencing of Alfonso Rodriguez Jr., convicted of killing North Dakota student Dru Sjodin.  But that only happened after a judge vacated the original death sentence.  Notably in 2021, the department agreed with lawyers for Wesley Coonce, sentenced to death for killing a fellow inmate in a mental health unit, that lower courts should look again at intellectual disability questions in his case. But the Supreme Court disagreed, declining to hear his case or remand it to lower courts....

Garland’s criteria for letting some capital cases proceed isn’t clear, though the department often consults victims’ families. Some feel strongly that suspected or convicted killers should face death.  Inmate attorneys have asked for all capital cases to get a fresh look. Garland has appeared to take one step in that direction.

The department this year restored written guidance emphasizing that staff can be proactive in fixing egregious errors in capital cases, though none has invoked that option.  Garland also re-set processes in which capital defendants can, in certain circumstances, ask the department to consent to their bids for relief.

Even though this article primarily higlights various ways in which AG Garland has not kept a "hard line" on capital cases, the headline and theme of the piece seems to be focused on the notion that DOJ ought not be seeking to uphold presumptively lawful death sentences. 

Prior related post:

• Is it really so hard to make sense of AG Garland's federal capital punishment administration?  

A couple of notable new capital cases on the latest SCOTUS "relist watch"

I noticed that this latest Relist Watch by John Elwood over at SCOTUSblog includes two new relisted capital cases.  Though I am not sure cert should be expected on either of these two cases, they both raise "evergreen" issues in the capital punishment arena.  Here are John's full descriptions (with links from the original):

The state of Alabama sentenced Kenneth Eugene Smith, the respondent in Hamm v. Smith, to die for murdering Elizabeth Dorlene Sennett in a murder-for-hire plot.  Smith challenged Alabama’s lethal injection process as unconstitutionally cruel and unusual, and he proposed nitrogen hypoxia as an alternative means of execution under the Supreme Court’s procedures for method-of-execution claims.  The Eighth Amendment inquiry focuses on whether the state’s chosen method of execution “cruelly superadds pain to the death sentence” by asking whether the state has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.”  The U.S. Court of Appeals for the 11th Circuit held that nitrogen hypoxia is “feasible and readily implemented” because Alabama adopted a statute authorizing that method of execution.  The state has petitioned for certiorari, arguing that that nitrogen hypoxia is not yet “feasible and readily implemented” because the state has not developed a protocol for that method of execution.

Kevin Burns, the petitioner in Burns v. Mays, was convicted and sentenced to death for killing two people (and wounding two others) during a botched robbery. A divided panel of the U.S. Court of Appeals for the 6th Circuit held that Burns had not received constitutionally ineffective assistance of counsel.  Before the Supreme Court, Burns argues that he received constitutionally ineffective assistance of counsel because his lawyer failed to ask the jury not to sentence him to death because of “residual doubt” about his guilt as permitted by state law, because he failed to introduce evidence that a co-defendant was the actual shooter, and because counsel conducted only one or two hours of work to prepare for the sentencing phase of the trial.  Burns argues that his entitlement for relief is so clear that the Supreme Court should summarily reverse.

Arizona Supreme Court refuses to order its Gov to proceed with an execution ... for now

As detailed in some recent prior posts (linked below), a local prosecutor and crime victims had sued the new Gov of Arizona after her pledge not to move forward with a scheduled execution.   Late yesterday, the Arizona Supreme Court, for the time being, refused to order the execution to move forward.  This local article, which includes a link to last night's order from the Arizona court, provides this review:

Gov. Katie Hobbs is not compelled to carry out an execution warrant for death row prisoner Aaron Gunches, according to an order from the Arizona Supreme Court.  The court, in a ruling issued Wednesday, says its role is to “issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution.”

But the law does not mandate the governor act on the warrant, the court said.... The court acknowledged that the Arizona Constitution provides that the governor “shall take care that the laws be faithfully executed," and that the governor is obligated to protect victims' rights to justice and due process, but it said those were "mixed questions of law and fact that are not properly before us."

The court denied the petition, made by Karen Price, sister of the victim, to force the governor to enforce the warrant.  Price, however, could advocate for execution on other grounds....

The Maricopa County Attorney's Office responded to the decision with a statement.  "With this ruling, the court recognizes that the Governor’s actions have constitutional implications, and the Governor has a duty to follow the law. We are assessing next steps to ensure the law is upheld and victims receive justice," the statement said.

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward
• Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

"After McCleskey"

The title of this post is the title of this recent paper authored by Robert Tsai recently posted to SSRN. Here is its abstract:

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate’s argument that significant racial disparities in the administration of Georgia’s capital punishment laws violated the Fourteenth Amendment’s Equal Protection Clause.  In brushing aside the most sophisticated empirical study of a state’s capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system.  Most accounts of the case end after noting the ruling’s incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates.  One might be forgiven for assuming that defense lawyers abandoned structural inequality claims and the use of quantitative evidence in capital cases altogether.

But that would be wrong and incomplete.  For the first time, this Article recounts an unusual chapter of the fallout from the McCleskey litigation, focusing on the litigation and social activism in the wake of that decision.  It draws on interviews with anti-death penalty lawyers working for or allied with the Southern Center for Human Rights in Georgia, including Stephen Bright, Ruth Friedman, Bryan Stevenson, and Clive Stafford Smith.  It is also based on archival research into their case files.  Drawing from these resources, this Article shows how a subset of cause lawyers in the late 1980’s and early 90’s had a remarkable reaction to that demoralizing ruling: they engaged in a distinctive form of “rebellious localism.”  Instead of forsaking structural equality claims, they doubled down on them.  Rather than make peace with what they believed to be an unjust ruling, they sought to subvert it.  They also scrambled to formulate reliable quantitative evidence of intentional discrimination.  Instead of accepting existing racial disparities in the criminal justice system, they went after prosecutors and state court judges to expose how racial minorities and poor people wound up on death row more often than their white, wealthier counterparts.

Understanding this untold episode of legal history teaches us about the limits of judicial control over constitutional lawmaking, the unanticipated consequences of trying to insulate the legal order from accountability, and the possibilities for keeping clients alive and earning pro-equality victories when political conditions are inhospitable.  For those who pay attention, there are lessons that might humble the most ideologically committed judges and inspire reformers who confront challenging legal circumstances.

Idaho about to become latest state to authorize execution by firing squad

As reported in this AP piece, "Idaho is poised to allow firing squads to execute condemned inmates when the state can't get lethal-injection drugs, under a bill the Legislature passed Monday with a veto-proof majority."  Here is more:

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.  Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center.  South Carolina’s law is on hold pending the outcome of a legal challenge.

Some states began refurbishing electric chairs as standbys for when lethal drugs are unavailable. Others have considered — and at times, used — largely untested execution methods.  In 2018, Nevada executed Carey Dean Moore with a never-before-tried drug combination that included the powerful synthetic opioid fentanyl. Alabama has built a system for executing people using nitrogen gas to induce hypoxia, but it has not yet been used.

During a historic round of 13 executions in the final months of Donald Trump’s presidency, the federal government opted for the sedative pentobarbital as a replacement for lethal drugs used in the 2000s. It issued a protocol allowing firing squads for federal executions if necessary, but that method was not used.  Some lawyers for federal inmates who were eventually put to death argued in court that firing squads actually would be quicker and cause less pain than pentobarbital, which they said causes a sensation akin to drowning.

However, in a 2019 filing, U.S. lawyers cited an expert as saying someone shot by firing squad can remain conscious for 10 seconds and that it would be “severely painful, especially related to shattering of bone and damage to the spinal cord.”...

Idaho Sen. Doug Ricks, a Republican who co-sponsored that state's firing squad bill, told his fellow senators Monday that the state's difficulty in finding lethal injection drugs could continue “indefinitely” and that he believes death by firing squad is “humane.”...

But Sen. Dan Foreman, also a Republican, said firing-squad executions would traumatize the people who who carry them out, the people who witness them and the people who clean up afterward. “I've seen the aftermath of shootings, and it's psychologically damaging to anybody who witnesses it,” Foreman said.  “The use of the firing squad is, in my opinion, beneath the dignity of the state of Idaho.”

The bill originated with Republican Rep. Bruce Skaug, prompted in part by the state's inability to execute Gerald Pizzuto Jr. late last year.  Pizzuto, who now has terminal cancer and other debilitating illnesses, has spent more than three decades on death row for his role in the 1985 slayings of two gold prospectors.

The Idaho Department of Correction estimates it will cost around $750,000 to build or retrofit a death chamber for firing squad executions.  Agency Director Jeff Tewalt last year told lawmakers there would likely be as many legal challenges to planned firing squad executions as there are to lethal injections.  At the time, he said he would be reluctant to ask his staffers to participate in a firing squad.

"The 'Cruel and Unusual' Legacy of the Star Chamber"

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

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty.

All three accounts face familiar and formidable historical challenges.  There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685.  Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment.  These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress.  Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture.  By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment.  Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete.  The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641.  Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital.  The English Article 10 repudiated this attempt to resurrect the Star Chamber.  Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings.  The clause now applied to capital, as well as noncapital, penalties.  It now also restricted legislative as well as judicial discretion.  Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment.  Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature.  It may also be, practically speaking, a matter of life and death.

Maricopa County prosecutor joins victims' group in challenging new Arizona Gov's pledge not to go forward with scheduled execution

As reported in this local article, headlined "'No law allows it': Maricopa County prosecutor challenges Gov. Hobbs' refusal to proceed with execution," notable litigation is afoot over execute powers and execution plans in the Grand Canyon State.  Here are the interesting details (with links from the originals):

Gov. Katie Hobbs faces a court fight over whether she can block a scheduled execution. 

Maricopa County Attorney Rachel Mitchell joined a crime victims' rights group Monday in asking the Arizona Supreme Court to order Hobbs to carry out the execution of convicted murderer Aaron Gunches.  "No law allows the governor to unilaterally suspend executions," Mitchell's court brief said....

The amicus brief supports the Arizona Voice for Crime Victims' petition for special action by the high court, filed on behalf of Karen Price, sister of Gunches' murder victim, Ted Price. 

Two weeks ago, Hobbs said the state wouldn't proceed with executions until her office's review of death-penalty procedures was complete.  The day before, the state Supreme Court had granted an execution warrant for Gunches with a date of April 6.

The first-term Democratic governor issued an executive order in January establishing a death penalty review commission. She cited questions about the Department of Corrections execution protocols and lack of transparency.  Democratic Attorney General Kris Mayes immediately paused executions. 

In her brief, Mitchell noted the "current execution protocol is the product of extensive litigation and multiple settlements with death row inmates."

Prior recent related posts:

• Different approaches to death penalty administration from different governors 
• New Arizona Gov pledging not to allow new scheduled execution to go forward

LWOP for NYC terrorist Sayfullo Saipov as jury unable to return unanimous death sentence verdict for his mass murder

As reported in this new New York Post piece, "West Side Highway terrorist Sayfullo Saipov will serve life in prison after a Manhattan federal court jury could not unanimously agree to sentence him to death for killing eight people and wounding several others in an ISIS-inspired rampage."  Here are more of the particulars of another high-profile case in which a jury did not all vote for a death sentence:

The jury’s failure to reach a unanimous verdict — necessary to impose the death penalty — on Monday ended a dramatic, months-long trial that saw surviving victims tearfully testify about the horror of his attack and the killer’s family members urge jurors to spare his life.

Saipov was convicted in January of fatally mowing down eight people along a West Side Highway bike path on Halloween 2017 in a rented Home Depot truck. During the penalty phase of the trial, prosecutors questioned a host of witnesses – including surviving victims and family members of those slain – to show jurors the horrific violence carried out by Saipov.

Assistant US Attorney Alexander Li told jurors during the guilt phase of the trial that Saipov smiled, gave a “proud confession” and requested an ISIS flag to hang in a hospital room where he was being treated after the attack....

The jury convicted Saipov on 28 counts — nine of which carried the possibility of the death penalty — hours after they began deliberations on Jan. 26.  The conviction triggered the penalty phase of the case — which functioned like another full trial, where prosecutors and defense attorneys questioned witnesses, presented evidence and delivered opening and closing arguments.

During the penalty phase, family members of those killed described in painstaking detail how they’ve been devastated by the loss of their loved ones. The emotional testimony was referenced in prosecutors’ dramatic closing argument on March 7 as they urged jurors to condemn Saipov.   “The defendant caused unbearable pain to these families. They are still suffering,” Assistant US Attorney Amanda Houle told jurors in her closing. 

“Has the government proven aggravating factors that show that the way that this defendant chose to commit murder, by terrorist attack and the unremorseful slaughter of innocent civilians. Does that make his crime worthy of a harsher penalty?” Houle asked jurors.   “The evidence shows overwhelmingly that it does,” she said.  Houle then described the testimony jurors had heard about how families of the slain victims had been upended by the terrorist attack....

Saipov’s defense attorneys had sought to humanize him by questioning his family members on the stand, most all of whom broke down in tears when they told the jury they still loved him — despite what he had done. The defense’s penatly-phase case reached a dramatic peak when his father, sobbing uncontrollably, told jurors he still loved his son “with all my heart” from the witness stand.

The testimony prompted Saipov’s uncle, who was seated in the gallery of the courtroom, to stand up and begin shouting in Uzbek. “Dirty ISIS bastards!” the man yelled in Uzbek before slamming his fist on a courtroom door and walking out of the room.

In an impassioned closing argument, Saipov attorney David Patton repeatedly told jurors they face a “unique, individualized, moral decision” in whether or not to sentence the terrorist to death. “That is an awesome responsibility and power, and we are asking you to decide for life, to decide that the appropriate moral decision here is life,” Patton said. “It is not necessary to kill Sayfullo Saipov, not for our safety or anyone else’s and not to do justice,” Patton said.

Prior related posts:

• Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?
• "Trump labels US justice system 'laughing stock' "
• Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets
• Federal judge rejects Sayfullo Saipov's efforts to block capital prosecution based on Prez Trump's tweets
• Noting that the Biden Administration in a high-profile case "has decided to continue to seek the death penalty" 

Texas completes its second execution of the week

As reported in this AP article, "Texas has executed an inmate convicted of the drug-related killings of four people more than 30 years ago, including a woman who was 9-months pregnant."  Here is more:

Arthur Brown Jr., 52, received a lethal injection Thursday evening at the state penitentiary in Huntsville.  He was condemned for the June 1992 slayings, which took place in a Houston home during a drug robbery.  Authorities said Brown was part of a ring that shuttled drugs from Texas to Alabama and had bought drugs from Jose Tovar and his wife Rachel Tovar.

Killed during the drug robbery were 32-year-old Jose Tovar; his wife’s 17-year-old son, Frank Farias; 19-year-old Jessica Quiñones, the pregnant girlfriend of another son of Rachel Tovar; and 21-year-old neighbor Audrey Brown.  All four had been tied up and shot in the head. Rachel Tovar and another person were also shot but survived.

“I don’t see how anybody could have just killed a pregnant woman and then made her suffer so much.  It’s just beyond words,” Quiñones’ older sister, Maricella Quiñones, said before the execution.

Brown was the fifth inmate put to death in Texas this year and the ninth in the U.S.  His execution was the second of two in Texas this week.  Another inmate, Gary Green, was executed Tuesday for killing his estranged wife and her young daughter.  Brown was defiant in his final statement before the lethal injection was administered. “What is happening here tonight isn’t justice," he said. "It’s the murder of another innocent man.”

The U.S. Supreme Court earlier Thursday declined an appeal from Brown’s attorneys to halt the execution.  They had argued that Brown was exempt from execution because he was intellectually disabled, a claim disputed by prosecutors.  The high court has prohibited the death penalty for the intellectually disabled....

One of Brown’s accomplices in the shootings, Marion Dudley, was executed in 2006.  A third partner was sentenced to life in prison. Brown, who was from Tuscaloosa, Alabama, had long maintained another person committed the killings.

Brown’s attorneys had previously filed other appeals that had been rejected by lower courts.  They argued he was innocent and that a witness actually implicated another suspect.  They also claimed Brown’s conviction was tainted by racial bias, alleging one of the jurors decided he was guilty because he was Black.

A judge in Houston on Tuesday denied a request by Brown’s attorneys for DNA testing of evidence that they said could have exonerated their client.  Josh Reiss, chief of the Post-Conviction Writs Division with the Harris County District Attorney’s Office in Houston, called Brown’s last-minute appeals a delay tactic....

Brown was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs.  Despite a civil court judge in Austin preliminarily agreeing with the claims, five of the inmates have been executed this year.

Texas completes its fourth execution of 2023

As reported in this AP article, a "Texas inmate convicted of fatally stabbing his estranged wife and drowning her 6-year-old daughter in a bathtub nearly 14 years ago was executed on Tuesday."  Here are more details:

Gary Green, 51, received a lethal injection at the state penitentiary in Huntsville.  He was condemned for the September 2009 deaths of Lovetta Armstead, 32, and her daughter, Jazzmen Montgomery, at their Dallas home. Green’s attorneys did not file any appeals seeking to stop the execution.

A Buddhist spiritual adviser chosen by Green stood beside the death chamber gurney at the inmate’s feet and said a brief prayer. Green then apologized profusely when asked by the warden if he had a final statement.... 

Instead of inserting the IV needles in each arm, prison technicians had to use a vein in Green’s right arm and a vein on the top of his left hand, delaying the injection briefly for Green, who was listed on prison records as weighing 365 pounds (165 kilograms)....  He was pronounced dead 33 minutes later, at 7:07 p.m.

Ray Montgomery, Jazzmen’s father and one of the witnesses, said recently that he wasn’t cheering for Green’s execution but saw it as the justice system at work. “It’s justice for the way my daughter was tortured.  It’s justice for the way that Lovetta was murdered,” said Montgomery, 43.  He and other witnesses did not speak with reporters afterward....

In prior appeals, Green’s attorneys had claimed he was intellectually disabled and had a lifelong history of psychiatric disorders.  Those appeals were rejected by the U.S. Supreme Court and lower appeals courts.  The high court has prohibited the death penalty for the intellectually disabled, but not for people with serious mental illness.

Authorities said Green committed the killings after Armstead sought to annul their marriage....  Armstead was stabbed more than two dozen times, and Green drowned Jazzmen in the home’s bathtub.  Authorities said Green also intended to kill Armstead’s two other children, then 9-year-old Jerrett and 12-year-old Jerome.  Green stabbed Jerrett but both boys survived....

Josh Healy, one of the prosecutors with the Dallas County District Attorney’s Office that convicted Green, said the boys were incredibly brave. Green “was an evil guy. It was one of the worst cases I’ve ever been a part of,” said Healy, now a defense attorney in Dallas....

Green’s execution was the first of two scheduled in Texas this week. Inmate Arthur Brown Jr. is set to be executed Thursday. Green was the eighth inmate in the U.S. put to death this year.

He was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. Despite a civil court judge in Austin preliminarily agreeing with the claims, four of the Texas inmates including Green have been executed this year.

New Arizona Gov pledging not to allow new scheduled execution to go forward

As reported in this AP article, headlined "Arizona Gov. Katie Hobbs refuses to proceed with execution set by court," the new Arizona Governor is continuing to promise to block executions in her state pending a review of state execution protocols. Here are the basics:

Arizona Gov. Katie Hobbs vowed Friday that her administration won’t carry out an execution even though the state Supreme Court scheduled it over the objections of the state’s new attorney general.  The Democratic governor’s promise not to execute Aaron Gunches on April 6 for his murder conviction in a 2002 killing came a day after the state Supreme Court said it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.

Last week, Hobbs appointed retired U.S. Magistrate Judge David Duncan to examine the state’s procurement of lethal injection drugs and other death penalty protocols due to the state’s history of mismanaging executions.  “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

Attorney General Kris Mayes’ office has said it won’t seek court orders to carry out executions while Hobbs’ review is underway.  Mayes, a Democrat who took office in January, tried to withdraw a request by her Republican predecessor, Mark Brnovich, for a warrant to Gunches.  The court declined to withdraw the request on Thursday.

The court said Hobbs’ review “does not constitute good cause for refraining from issuing the warrant.”  Mayes’ office declined to comment on Hobbs’ promise not to carry out the execution next month. Hobbs maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs can use her authority as the state’s chief executive when the state believes it cannot carry out an execution in a constitutionally acceptable manner.  “What the governor did is not unique,” said Baich, who applauded Hobbs’ move. “Governors in Alabama, Ohio and Tennessee recently used their authority to pause executions because they had serious questions about the protocols in their states.”...

Arizona, which has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus following criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.  Since resuming executions, the state has been criticized for taking too long to insert an IV for lethal injection into a prisoner’s body in early May and for denying the Arizona Republic newspaper’s request to witness the last three executions.

Gunches is scheduled to be executed on April 6 for the 2002 killing of Ted Price, his girlfriend’s ex-husband, in Maricopa County. Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so justice could be served and the victims could get closure.  In Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.  But Gunches withdrew his request in early January, and Mayes asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.

Alabama officials ready to resume carrying out death sentences

Alabama had two botched lethal injection executions back in Fall 2022, which prompted its Governor to order a review of execution protocols and operation.  As detailed in this local article, headlined "Executions back on in Alabama after brief moratorium," Alabama has completed that review and will now try to get back to conducting executions:

Executions are back on in Alabama. According to an email from Gov. Kay Ivey’s communications director, Ivey received a letter Friday from Alabama Department of Corrections Commissioner John Hamm.  Hamm told the governor that the “top-to-bottom” review of the state’s execution process is complete.

“Upon receiving word from Commissioner Hamm, Governor Kay Ivey asked Attorney General Steve Marshall to ask the Supreme Court to issue an execution warrant for an eligible death row inmate whenever he deems appropriate,” said Ivey’s Communications Director Gina Maiola.  In a letter to Marshall, Ivey said, “it is time to resume our duty of carrying out lawful death sentences.”

On Friday afternoon, Marshall announced on social media that he filed a motion seeking the Alabama Supreme Court to set an execution date for James Barber.  Barber has been on death row since 2004 for the fatal beating of 75-year-old Dorothy Epps. Marshall added that his office “will be seeking death warrants for other murderers in short order.”

No details were provided as to what was learned during the internal review of the execution process, but Hamm wrote that the ADOC has “ordered and obtained new equipment” for future executions....

On Nov. 21, following two failed execution attempts, Ivey ordered a halt to all executions in Alabama.  “Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” a press release from that day stated. Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete.

The announcement of a halt to executions came just days after Kenneth Smith’s execution was called off just before midnight on Nov. 17.  The state called off the lethal injection after not being able to find veins to start the intravenous lines needed for the three-drug cocktail, which had to be done before midnight when the execution warrant expired. Another execution -- that of Alan Miller -- was called off in September for similar reasons.

The only change publicly known to Alabama’s execution protocol that was made during the three-month moratorium was a change made by the Alabama Supreme Court, ending the midnight deadline.  The state’s highest court authorized a rule change allowing for an execution warrant to be issued for a time frame rather than a single day.  The rule means the governor can choose the timing of an execution, according to the court’s order....

There are currently 166 inmates sitting on Alabama Death Row.

In his letter to Ivey announcing the end of the internal review, Hamm said, “After discussing the matter with my staff, I am confident that the Department is as prepared as possible to resume carrying out executions consistent with the mandates of the Constitution.  This is true in spite of the fact that death row inmates will continue seeking to evade their lawfully imposed death sentences.”

Some prior related posts:

• Alabama botches execution by failing to be able to complete it before expiration of death warrant 
• Alabama unable to complete execution because of lethal injection difficulties
• After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state 
• Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended
• Could Alabama have an execution using nitrogen gas in 2023? 

Cruising around some early commentary on Cruz v. Arizona

Perhaps in part because the U.S. Supreme Court has not yet issued that many notable opinions, and perhaps in part because every capital case that leads to an interesting 5-4 split ruling garners attention, there has been a good bit of early commentary regarding this past week's decision in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), on behalf of a death row defendant. Here is a sampling:

At Crime & Consequences from Kent Scheidegger, "Supreme Court Reinstates Review of Arizona Murderer’s Case"

At Esquire from Charles P. Pierce, "Terrible Ideas Keep Inching Closer to Reality, Thanks to Supreme Court Conservatives"

At The Hill from Austin Sarat, "Supreme Court delivers rare victory for death row inmate: the chance to spend rest of his life behind bars"

At SCOTUSblog from Alexis Hoag-Fordjour, "In rare win for people on death row, justices chide Arizona for ignoring Supreme Court precedent"

At Slate from Leah Litman, "The Supreme Court Did Something Rare: Enforced a Precedent Conservatives Hate"

At the Washington Post from Ruth Markus, "The justices halt an execution — and reveal themselves in the process"

Florida completes its first execution since 2019

Florida has a large death row with more than 300 murderers awaiting execution, but the state has not executed anyone in the last few years.  But today the Sunshine State got its machinery of death up and running again as detailed in this AP article:

Florida executed a man on Thursday for murdering a woman in 1990 after he escaped from prison, stabbing her to death in a shopping mall parking lot in an attempted carjacking.

Donald Dillbeck, 59, was pronounced dead at 6:13 p.m. after receiving a lethal injection at Florida State Prison, the governor’s office said. He had been convicted in the murder of Faye Vann, 44, in Tallahassee near the state Capitol.

The execution was Florida’s first in nearly four years and the third under Republican Gov. Ron DeSantis.  By comparison, his immediate predecessor, current U.S. Republican Sen. Rick Scott, oversaw 28 executions.

Vann’s children, Tony and Laura, released a statement after the execution: “11,932 days ago, Donald Dillbeck brutally killed our Mother. We were robbed of years of memories with her, and it has been very painful ever since.”  They thanked DeSantis for carrying out the execution, saying it “has given us some closure.”...

Dillbeck was 15 when he stabbed a man in Indiana while trying to steal a CB radio, court records show.  He fled to Florida, where Lee County Deputy Dwight Lynn Hall found him in a Fort Myers Beach parking lot.  While Hall was searching him, Dillbeck hit the deputy in the groin and ran. Hall tackled him and, as the two wrestled, Dillbeck took Hall’s gun and shot him twice.

Dillbeck was 11 years into a life sentence for killing the deputy when he walked away from a work release assignment catering a meal for a seniors event, according to court records.  He then bought a paring knife and walked to Tallahassee.  Vann was waiting for her family when Dillbeck approached her car with the knife and demanded a ride, saying he’d forgotten how to drive, court records show.  Vann honked the horn, tried to drive off and fought back that Sunday afternoon, but Dillbeck stabbed her more than 20 times and slit her throat, court records show. He crashed the car a short time later and was captured after running from the scene.

Despite a prior escape attempt and an assault on another prisoner, Dillbeck had been placed in a minimum security facility.  A furious Republican Gov. Bob Martinez fired three corrections officials and sought to implement rules to ensure prisoners with life sentences would be held in more secure settings.

Florida’s Supreme Court earlier this month denied appeals claiming he shouldn’t be put to death because he suffers from fetal alcohol syndrome and it was cruel and unusual to keep him on death row for more than 30 years before his death warrant was signed.  The U.S. Supreme Court denied his appeals Wednesday.

US Supreme Court, in 5-4 ruling, rejects Arizona's claim of proper state-ground basis to uphold death sentence

In an interesting little ruling in a state capital case, the US Supreme Court this morning in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), rejected an effort by Arizona to preserve a state death sentence on procedural grounds.  The Court's opinion was authored by Justice Sotomayor and joined by the Chief Justice and Justices Kagan, Kavanaugh and Jackson. Here is how the Court's opinion starts and ends:

Petitioner John Montenegro Cruz, a defendant sentenced to death, argued at trial and on direct appeal that his due process rights had been violated by the trial court’s failure to permit him to inform the jury that a life sentence in Arizona would be without parole. See Simmons v. South Carolina, 512 U.S. 154, 161–162 (1994) (plurality opinion); id., at 178 (O’Connor, J., concurring in judgment). Those courts rejected Cruz’s Simmons argument, believing, incorrectly, that Arizona’s sentencing and parole scheme did not trigger application of Simmons. See State v. Cruz, 218 Ariz. 149, 160, 181 P.3d 196, 207 (2008).

After the Arizona Supreme Court repeated that mistake in a series of cases, this Court summarily reversed the Arizona Supreme Court in Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), and held that it was fundamental error to conclude that Simmons “did not apply” in Arizona. 578 U.S., at 615.

Relying on Lynch, Cruz filed a motion for state postconviction relief under Arizona Rule of Criminal Procedure 32.1(g). That Rule permits a defendant to bring a successive petition if “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” Ariz. Rule Crim. Proc. 32.1(g) (Cum. Supp. 2022); see also ibid. (Cum. Supp. 2017).

The Arizona Supreme Court denied relief after concluding that Lynch was not a “significant change in the law.” 251 Ariz. 203, 207, 487 P. 3d 991, 995 (2021). The Arizona Supreme Court reached this conclusion despite having repeatedly held that an overruling of precedent is a significant change in the law.  See id., at 206, 487 P. 3d, at 994 (The “‘archetype of such a change occurs when an appellate court overrules previously binding case law’”).

The Court granted certiorari to address whether the Arizona Supreme Court’s holding that Lynch was not a significant change in the law for purposes of Rule 32.1(g) is an adequate and independent state-law ground for the judgment.  It is not....

In exceptional cases where a state-court judgment rests on a novel and unforeseeable state-court procedural decision lacking fair or substantial support in prior state law, that decision is not adequate to preclude review of a federal question.  The Arizona Supreme Court applied Rule 32.1(g) in a manner that abruptly departed from and directly conflicted with its prior interpretations of that Rule.  Accordingly, the judgment of the Supreme Court of Arizona is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

The  dissent was authored by Justice Barrett and joined by Justices Thomas, Alito and Gorsuch.  It ends this way:

The Court makes a case for why the Arizona Supreme Court’s interpretation of its own precedent is wrong.  If I were on the Arizona Supreme Court, I might agree.  But that call is not within our bailiwick.  Our job is to determine whether the Arizona Supreme Court’s decision is defensible, and we owe the utmost deference to the state court in making that judgment.  Cases of inadequacy are extremely rare, and this is not one.  I respectfully dissent.

"Severe Mental Illness and the Death Penalty: A Menu of Legislative Options"

The title of this post is the title of this notable new paper authored by Richard J. Bonnie and now available via SSRN.  Here is its abstract:

In 2003, the American Bar Association established a Task Force on Mental Disability and the Death Penalty to further specify and implement the Supreme Court’s ruling banning execution of persons with intellectual disability and to consider an analogous ban against imposing the death penalty on defendants with severe mental disorders.  The Task Force established formal links with the American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness and the final report was approved by the ABA and the participating organizations in 2005 and 2006.  This brief article focuses primarily on diminished responsibility at the time of the offense, summarizing the reasons why an exclusion for severe mental illness is needed and reviewing the key drafting issues that can be expected to arise in defining the clinical criteria for exclusion.  A key question is whether state trial judges and judges appointed to state appellate courts embrace their constitutionally grounded duties to assure sparing and humane administration of the death penalty.  Assiduous efforts to prevent execution of prisoners with severe mental illness is a necessary element of that judicial assignment.

Could Alabama have an execution using nitrogen gas in 2023?

The question in the title of this post is prompted by this new AP piece headlined "Alabama 'close' to finishing nitrogen execution protocol."  Here are the basics:

The head of Alabama's prison system said Wednesday that a protocol for using nitrogen gas to carry out executions should be finished this year. "We're close. We're close," Alabama Commissioner John Hamm said of the new execution method that the state has been working to develop for several years.

He said the protocol "should be" finished by the end of the year. Hamm made the comment in response to a question from The Associated Press about the status of the new execution method. Once the protocol is finished, there would be litigation over the untested execution method before the state attempts to use it.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. Alabama, Oklahoma and Mississippi have authorized the use of nitrogen hypoxia, but it has never been used to carry out a death sentence.

Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method. Supporters said the state needed a new method as lethal injection drugs became difficult to obtain. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge in 2021 that it had completed a "system" to use nitrogen gas but did not describe it.

Although lethal injection remains the primary method for carrying out death sentences, the legislation gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. Hamm also said a review of the state's execution procedures should be completed, "probably within the next month."

As the article highlights, inevitable litigation over a novel execution method likely means the sensible answer to the question in the title of this post is "Quite probably no." But, given the long-standing debates over execution methods, it is still interesting to see Alabama claim it is getting closer to pioneering a new method.

New Pennsylvania Gov announces his capital punishment abolitionist plans

Pennsylvania has over 100 condemned murderers on its death row, though it has not completed an execution in nearly a quarter century.  And, as reported in this AP piece, the new Governor of the Keystone State is committed to keep the state execution-free.  Here are the details:

Democratic Gov. Josh Shapiro said Thursday he will not allow Pennsylvania to execute any inmates while he is in office and called for the state’s lawmakers to repeal the death penalty.

Shapiro, inaugurated last month, said he will refuse to sign execution warrants and will use his power as governor to grant reprieves to any inmate whose execution is scheduled.  In doing so, he is exercising an authority used for eight years by his predecessor, Gov. Tom Wolf, to effectively impose a moratorium on the death penalty in a state where it has been sparsely used.

Shapiro went further, asking lawmakers to repeal the death penalty and calling it fallible and irreversible.  “Today, I am respectfully calling on the General Assembly to work with me to abolish the death penalty once and for all here in Pennsylvania,” Shapiro said in a news conference at Mosaic Community Church in Philadelphia.  The state, he said, “should not be in the business of putting people to death.”...

On the campaign trail last year for governor, Shapiro had said he was morally opposed to the death penalty, even though he had run for attorney general in 2016 as a supporter of the death penalty for the most heinous cases.

While Wolf was governor from 2015 until last month, judges delivered eight more death sentences.  In the meantime, Wolf issued eight reprieves to inmates who had been scheduled to be put to death.  Wolf had said he would continue the reprieves until lawmakers addressed inequities in the use of the death penalty, but lawmakers never did and Wolf’s reprieves remain in effect.

Wolf’s use of reprieves was upheld by the state Supreme Court in a legal challenge brought by county prosecutors, who argued that Wolf was unconstitutionally turning what had been intended to be a temporary tool into a permanent one.

Pennsylvania has 101 men and women on its shrinking death row, according to statistics from the Department of Corrections.  The state has executed three people since the death penalty was reinstated in 1976, as courts and now governors have blocked every other death sentence thus far. All three men who were executed gave up on their appeals voluntarily.  The state’s most recent execution took place in 1999.

Buffalo mass shooter formally sentenced to LWOP in New York state court

Though New York in 1995 brought back the state's death penalty legislatively,  New York's highest court in June 2004 decided that the state's death penalty statute violated the New York Constitution.  Consequently, the harshest sentence that a mass killer in New York can get under state law is life without parole, and this New York Times piece reports on just such a high-profile sentencing today in Buffalo. Here are some details:

The gunman in a racist massacre at a Buffalo supermarket last year was sentenced to life in prison without the chance of parole on Wednesday, after apologizing for his attack amid a torrent of raw emotions from the victims’ families, including one man who lunged at him in court.

“You will never see the light of day as a free man again,” the judge, Susan Eagan, said after reading a statement about the harmful effects of institutional racism and white supremacy, calling it an “insidious cancer on our society and nation.”

The sentence reflected the outcome of a guilty plea to 10 counts of first-degree murder and a single count of domestic terrorism motivated by hate, which carries a penalty of life imprisonment without parole.  Judge Eagan’s sentence came after a brief apology by the gunman, Payton Gendron, who said he was “very sorry” for the attack and blamed online content for the shooting rampage on May 14, in which 10 people were killed, all of them Black, and three people injured. He said he didn’t want to inspire other racist killings....

As Mr. Gendron spoke, a member of the audience began screaming and cursing at him, the second such interruption in an emotionally raw hearing. Earlier, the sentencing was dramatically interrupted and the courtroom cleared after a man lunged at the defendant.  Judge Eagan emptied the courtroom and reconvened the hearing a short time later, pleading for decorum while saying she understood the anger toward the gunman. “We are all better than that,” she said. Before Mr. Gendron heard his sentence, families of the victims testified as to the insurmountable damage done by the attack.

“You are a cowardly racist,” said Simone Crawley, whose grandmother Ruth Whitfield, 86, was killed in the shooting. She asked for accountability for others who aided or turned a blind eye to Mr. Gendron’s growing radicalization....

Zeneta Everhart, whose son Zaire was injured, but survived, said: “The world says you have to forgive in order to move on.  But I stand before you today to say that will never happen.”

Kimberly Salter’s husband, Aaron Salter, a retired Buffalo police officer, did not survive: He was shot and killed in the attack.  Ms. Salter quoted the Bible as she stood just feet from Mr. Gendron, who wore an orange jumpsuit and spectacles. “You will reap,” she said, “what you sow.”...

Mr. Gendron, 19, pleaded guilty in November to the state charges.  He is also charged with federal hate crimes and weapons violations, some of which could carry the death penalty if the Justice Department decided to seek it.  Those charges are still pending....

His video feed of the attack was briefly online, before being shut down by social media companies.  Still, the Buffalo attack remains one of the nation’s deadliest racist shootings, joining a list that includes the killing of nine Black parishioners at a church in Charleston, S.C., in 2015; an antisemitic rampage in Pittsburgh, at the Tree of Life synagogue in 2018 where 11 people were killed; and an attack at a Walmart in El Paso in 2019 in which more than 20 people were killed by a man who had expressed hatred of Latinos.

Is it really so hard to make sense of AG Garland's federal capital punishment administration?

The question in the title of this post is my reaction to this lengthy new Washington Post article headlined "Justice Department standards on federal death penalty called confusing."  Here are excerpts (with a few points highlighted for commentary to follow):

The Justice Department’s disparate approaches in a pair of mass-killing cases is generating accusations that the Biden administration has failed to press for the elimination of capital punishment and is not applying clear standards in judging who, if anyone, should face the death penalty.

On Monday, federal prosecutors will begin the death penalty phase in the trial of Sayfullo Saipov, who was convicted last month on murder and terrorism charges for fatally hitting eight pedestrians with a truck on a New York City bike path in 2017.  That comes days after the Justice Department announced an agreement allowing Patrick Crusius, who pleaded guilty to killing 23 people and injuring 22 while targeting Mexicans during a mass shooting rampage at a Walmart in El Paso in 2019, to avoid the death penalty.  He faces life in prison....

Analysts said the Justice Department’s decisions in those cases and several others make it difficult to detect a consistent policy more than two years into the Biden presidency.  As a candidate, Biden made promises to push for legislation banning capital punishment over concerns about how federal executions are carried out and how prosecutors have disproportionately targeted racial minorities and the poor.

Biden has said little about the issue since taking office. Attorney General Merrick Garland has deauthorized 25 death penalty cases that were started under previous administrations, and the Justice Department has not authorized any new capital cases since he took over in 2021.

The Justice Department in 2021 and 2022 continued to back capital convictions in the face of appeals from Dylann Roof, a White man who fatally shot nine Black parishioners in Charleston, S.C., in 2015, and Dzhokhar Tsarnaev, who orchestrated, along with his older brother, a bombing that killed three at the Boston Marathon in 2013. Federal courts upheld both of their death penalty sentences.

Meantime, seven federal capital cases, including Saipov’s, remain active, Justice officials said.  Among them is the government’s prosecution of Robert Bowers, who is set to stand trial in April on charges related to the mass shooting that slaughtered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.

“It’s really hard to say what’s going on,” said Monica Foster, a federal public defender representing Jairo Saenz, an MS-13 gang member who, along with his brother Alexi, are facing capital charges in connection with seven killings in Long Island in 2016.  Federal prosecutors announced in 2020 that they would seek the death penalty for both men; Foster, who recently took over Jairo Saenz’s defense, said she intends in March to ask Garland to withdraw the death penalty — a formal Justice Department process known as a deauthorization request.  Lawyers for Alexi Saenz said they, too, will seek deauthorization....

“They clearly are willing to walk back prior authorizations, so then it’s just a question of when?” said Nathan Williams, a former federal prosecutor who helped oversee Roof’s conviction in 2015.  “What’s distinguishing those cases, the ones they dismissed the notice on, from the cases of Bowers or Roof or Tsarnaev?  My guess is that they are less egregious cases. But then on the more egregious ones, are we seeing a general policy or a reflection of individual decisions on cases?”

The answer could have a direct bearing on another high-profile case, as the Justice Department is still deliberating over whether to pursue a capital case against Payton Gendron, a White man who faces 27 hate-crime and gun-related offenses in the fatal shooting of 10 Black people in a Buffalo grocery store last year.  Gendron live-streamed his attack and is alleged to have written a 180-page manifesto spouting white supremacist conspiracy theories and anti-Black and anti-Jewish rhetoric, while laying out plans for the assault.

“I was more than a little surprised when I saw what happened” in the Saipov bike path case, said Terrence Conners, a lawyer who represents victims’ families in the Gendron case.  The families have expressed split opinions over whether Gendron should face capital punishment. “The expressed policy of the Biden administration and the policy of Merrick Garland has been anti-death penalty,” Connors said. “With the horrible events in Buffalo and the racial animus and the predetermination [from Gendron], it may be a case that changes their minds.”

The Justice Department has long-standing policies governing how decisions on capital cases are made. The process, which typically takes more than a year, includes recommendations from a capital case committee in Washington, U.S. attorneys and the department’s Civil Rights Division, along with input from victims’ families, defense attorneys and community leaders.... Administration officials cautioned that because Garland has not authorized any new death penalty cases, it does not mean he is firmly opposed to doing so.  The officials spoke on the condition of anonymity, citing active legal cases....

Cassie Stubbs, director of the ACLU’s Capital Punishment Project, suggested Garland might be distinguishing between honoring decisions in capital cases made by prior administrations, while staking out his own legacy in not approving any new cases under his watch....

In announcing Crusius’s plea deal in El Paso, under which he faces 90 consecutive life sentences, assistant U.S. Attorney Ian Hanna acknowledged that the defendant has schizoaffective disorder, a signal that the government viewed the disability as a mitigating factor against capital punishment.

Crusius’s legal team had hired an outside expert, who made the diagnosis, and the Justice Department agreed with the findings, in part because the expert was someone that federal authorities also have consulted on cases and trusted, according to a federal government official who spoke on the condition of anonymity to discuss private deliberations. The Justice Department’s position in the Crusius case stands in contrast to the decision made by El Paso’s district attorney’s office, which is seeking the death penalty in the state’s murder case against Crusius, of Allen, Tex.

Twenty-three states have abolished the death penalty, while three — Oregon, Pennsylvania and California — have a moratorium against it. The number of state executions has fallen from 60 in 2005 to 18 in 2022, according to the Death Penalty Information Center. Texas has executed 581 people since 1977, nearly five times more than Oklahoma, the state with the second-most executions.

The lines I have emphasized from these excerpts make it not "confusing" for me to make sense of the current administration's approach to capital punishment.  For starters, two years in, AG Garland has not authorized any new federal capital cases. But, showing respect for the fact that Congress has not repealed the death penalty, he also has not announced that he would never seek a federal capital charge.  So why not seek capital punishment for Patrick Crusius?  In addition to the fact the mental health issues, the feds could be confident that a capital prosecution could be pursued, perhaps a lot more efficiently, by state prosecutors in Texas, a state with a considerable capital track record. (The Buffalo mass shooting, in a state without the death penalty, presents a harder question and it will be interesting to see AG Garland's capital decision there.)

Next, for ongoing cases, it makes perfect sense that AG Garland, exercising his prosecutorial discretion, would "deauthorize" capital prosecution in the "less egregious" cases but not in the "more egregious" cases.  I am not familiar with all the facts in all recent federal capital cases, but the idea that federal capital cases would keep moving forward in the most horrific mass killings and would not in less extreme cases seems entirely in keeping with a view of the death penalty being reserved for "the very worst of the worst."  Moreover, in mass killing cases, there are likely a greater number of victims and victims' family members who may express a strong interest in having the federal capital cases continued.

Of course, capital punishment abolitionists are always going to be grumpy when any capital case continues and capital punishment advocates are often going to be troubled when certain capital cases are not aggressively pursued.  But, the fact that AG Garland is taking a cautious case-by-case approach to capital cases does not make his standards inherently confusing or unprincipled.  Indeed, considering each case carefully on its own merits seems absolutely essential to the effective administration of justice in capital and non-capital cases.

Texas completes its third execution of 2023

As detailed in this AP article, an "inmate convicted of killing three teenagers while they slept in a Texas Panhandle home more than 25 years ago was executed on Wednesday, the sixth inmate to be put to death in the U.S. this year and the second in as many days." Here is more:

John Balentine, 54, who had argued that his trial was marred by racial bias, received a lethal injection at the state penitentiary in Huntsville, Texas, for the January 1998 shooting deaths of Edward Mark Caylor, 17, Kai Brooke Geyer, 15, and Steven Watson, 15, at a home in Amarillo.  Prosecutors said all three were shot once in the head as they slept.

Caylor’s sister was Balentine’s former girlfriend, and prosecutors said the shootings stemmed from a feud between Caylor and Balentine.  Ballentine, however, argued that Caylor and others had threatened his life over his interracial relationship. Balentine is Black.  The three victims were white.

Balentine confessed to the murders.  One of his trial attorneys said Balentine turned down a plea agreement that would have sentenced him to life in prison because the racists threats he received made him afraid of being attacked or killed while incarcerated.

Lawyers were pursuing two legal strategies to save their client before he was executed.  The first was to argue that his trial and sentencing were tainted by racism.  But Balentine was also among five Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs....

The U.S. Supreme Court on Wednesday declined an appeal from Balentine’s attorneys to halt the execution so that his claims of racial bias could be properly reviewed.

A defense request for Republican Gov. Greg Abbott to temporarily stay the execution also failed and the Texas Court of Criminal Appeals denied a request to stay Ballentine’s execution over allegations that “racism and racial issues pervaded” his trial.  The appeals court denied the stay on procedural grounds without reviewing the merits.

On Wednesday afternoon, the Texas Board of Pardons and Paroles unanimously declined to commute Balentine’s death sentence to a lesser punishment or to grant a 30-day reprieve....

Koda Shadix, the younger brother of Geyer, one of the victims, said in a video posted online last week that he was upset by efforts to delay justice.  Balentine has “shown no remorse and absolutely does not care what he did.  All he cares about is his life,” Shadix said.

Missouri completes its second execution of 2023

As reported in this local article, "Missouri on Tuesday executed 58-year-old Leonard Taylor, who was convicted of killing his girlfriend and her three children at their home in Jennings nearly two decades ago."  Here are more: 

A state executioner delivered a fatal dose of pentobarbital at 6:07 p.m., and Taylor was pronounced dead a short time later, according to the Missouri Department of Corrections....

Taylor was the third person to be executed in Missouri in three months. His death marked only the second time since 2015 that more than one person was executed in a calendar year.

He was convicted in 2008 of killing 28-year-old Angela Rowe and her three children, Alexus Conley, 10, AcQreya Conley, 6, and Tyrese Conley, 5, at their home on Park Lane in Jennings. He has insisted he is innocent of the killings.

Rowe's older sister, Gerjuan Rowe, attended Tuesday's execution along with eight other loved ones. "Justice was served," Rowe said. "Now, I get a little peace."

Rowe and her children were found Dec. 3, 2004. Rowe was covered by blankets and shot four times, once fatally in the head. The children were also shot and lined up on a bed. Prosecutors said they believed the family was shot on the night of Nov. 23 or early morning of Nov. 24, 2004.

Taylor had called his brother just before midnight, then again at 12:05 a.m. Nov. 24, and admitted to the killings. The brother told police Taylor stayed in the house with the bodies because he was waiting for a letter from his wife in California....

A jury sentenced Taylor to death on Feb. 29, 2008, for the four murders.

Taylor had since filed several appeals, including a request last month asking St. Louis County prosecutor Wesley Bell to hold a hearing to review discrepancies in the state's evidence and consider new declarations from Taylor's daughter and her mother saying Taylor was actually in Los Angeles at the time of the killings. Bell denied that request last week, finding "the facts are not there to support a credible case of innocence."

On Monday, Missouri Gov. Mike Parson denied Taylor's petition for clemency. "Leonard Taylor brutally murdered a mother and her three children. The evidence shows Taylor committed these atrocities and a jury found him guilty," Parson said in a statement. "Despite his self-serving claim of innocence, the facts of his guilt in this gruesome quadruple homicide remain."

A number of notable capital punishment stories to start the week

I have seen so many notable new press stories about capital punishment issues, I concluded this round-up of headlines and links would be the only way to keep up:

From the AP, "Spiritual advisers offering final comfort in execution rooms"

From the AP, "Florida could end unanimous jury requirement for executions"

From the Kansas City Star, "‘Intolerable injustice’: Innocence Project calls for halt to Missouri man’s execution"

From the Pittsburgh Post-Gazette, "Shapiro must decide whether and how to keep Wolf's death penalty moratorium in place"

From the UPI, "Death row inmate's attorneys called sentence 'justifiable lynching' in 1999 hearing"

From WFLA, "Steven Lorenzo requests death penalty in double murder case"

From WIBW, "ACLU to try Kansas death penalty in multi-day Wichita hearing"

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

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

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

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

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

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

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

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

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

Download USA_v._BOWERS__Docket_No._2_18

Texas completes in second execution of 2023

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

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

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

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

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

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

"Suffering Before Execution"

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

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

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

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

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

Different approaches to death penalty administration from different governors

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

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

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

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

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

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

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

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

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

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

"The Problem with Capital Pleas"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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