Arizona Director of Corrections Charles Ryan has this statement on the execution of Joseph Wood (emphasis added):

The Department of Corrections followed the execution protocol and, as with every execution, it was monitored by an IV team of licensed medical professionals in control of the medical procedures.

The first confirmation that inmate Wood was fully and deeply sedated occurred at 1:57 PM, five minutes after the direction to proceed with the administration of drugs was given. The medical team re-affirmed the inmate remained deeply sedated seven additional times before death was pronounced at 3:49 PM.

Once the inmate was sedated, other than sonorous respiration, or snoring, he did not grimace or make any further movement. Throughout this execution, I conferred and collaborated with our IV team members and was assured unequivocally that the inmate was comatose and never in pain or distress.

Physiologically, the time to complete an execution varies for each individual. The Department of Corrections will conduct a full review of the execution protocol and process. We will await the results of an independent autopsy from the Pima County Medical Examiner and we have requested a toxicology study as well.
Also, Ashby Jones and Jacob Gershman have this story in the WSJ.

De-policing New York

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Incredible as it seems, the people who want to undo the policing reforms that made New York City a much safer and more livable place than it used to be are gaining ground.  The current poster boy for this movement is Eric Garner, who died after being put in a chokehold while resisting arrest.  Heather MacDonald has this article in the City Journal on the dire consequences of undoing New York's very successful policing efforts.  The article concludes:

The biggest threat facing minority New Yorkers now is not "over-policing," and certainly not brutal policing. The NYPD has one of the lowest rates of officer shootings and killings in the country; it is recognized internationally for its professionalism and training standards. Deaths such as Garner's are an aberration, which the department does everything it can to avoid. The biggest threat facing minority New Yorkers today is de-policing. After years of ungrounded criticism from the press and advocates, after highly publicized litigation and the passage of ill-considered laws--such as the one making officers financially liable for alleged "racial profiling"--NYPD officers have radically scaled back their discretionary activity. Pedestrian stops have dropped 80 percent citywide and almost 100 percent in some areas. The department is grappling with how to induce officers to use their lawful authority again to stop crime before it happens. Eric Garner's death was a heartbreaking tragedy, but if the unjustified backlash against misdemeanor enforcement takes root and finds a sympathetic audience in Mayor Bill De Blasio, the consequences for all New Yorkers will be even more dire.

News Scan

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Judge Asks Why Murder Suspect Wasn't Already Behind Bars: A Michigan judge has revealed that the man suspected of murdering a two-year-old girl earlier this month should have been in jail at the time of the killing, and is asking why he was released from custody early.  CBS Detroit reports that 25-year-old Raymone Jackson was sentenced to 11 months in prison last September, but was released just six months later. Police believe Jackson killed the girl as form of retaliation against her father.
Delaware High Court Upholds Death Sentence: The Delaware Supreme Court has ruled to uphold the death sentence for a man convicted of murder nearly ten years ago.  Joe Jenkins of the Daily Voice reports that James Cooke was sentenced to death in 2012 for the rape and murder of a University of Delaware student in 2005.  Cooke was originally sentenced to death for the killing in 2007, but that conviction was ultimately thrown out by the state's high court in a divided ruling.  He was tried again and sentenced to death five years later.

Increase in Murders After Death Penalty Abolished: South Africa has experienced a sharp increase in murders and violent crimes in recent years, which some believe was caused by eliminating the death penalty. Laura Oneale of Guardian Liberty Voice reports that the murder rate has continued to increase since the death penalty was abolished in 1996.  South Africa, which has been rated the most murderous society in the world, averages more than 47,000 killings annually. 


Colorado Gov. Race Now A Toss-Up

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Colorado Governor John Hickenlooper was considered "safe" for reelection not so long ago.  Real Clear Politics changed its rating to "toss-up" last week.

On July 15, I noted that the NBC/Marist Poll had Hickenlooper ahead 49-43.  Conventional political wisdom is that an incumbent is in trouble if early polls show less than a majority, even if leading the opponent.

Two polls since then have come out 43-44 and 44-43, Quinnipiac and PPP respectively.  I generally dislike the term "statistical dead heat" in political poll reporting, but it fits here.  That's a dead heat.
Dan Frosch has this story in the WSJ:

Republicans have tried to cast Mr. Hickenlooper as indecisive, noting his move last year to delay the execution of a convicted murderer, Nathan Dunlap, over concerns about the death penalty's morality. Mr. Hickenlooper didn't grant Mr. Dunlap clemency either, instead issuing a "temporary reprieve."
The Federal Public Defender for Arizona has filed a motion to stop the execution of Joseph Wood already in progress.  The first paragraph says:

The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood's Eighth Amendment right to be executed in the absence of cruel and unusual punishment.
The conclusion does not follow from the premises.  The motion does not dispute the ADC's conclusion that Wood is sedated.  If he is sedated, he is not in pain, and nothing happening here remotely qualifies as "cruel."  Gasping and snorting do not necessarily mean a person is in pain, and if he is sedated he certainly is not.

When states were able to use the single-drug protocol with pentobarbital, the executions went smoothly.  The problem here has been caused by those who pressured the suppliers to stop supplying pentobarbital, and any response should be directed at reopening that supply line.

Update:  AP reports the Arizona AG says the execution is completed, though it took about 2 hours.

The anti-death-penalty crowd is already throwing around their favorite word, "botched."  Wrong.  Joseph Wood died, as he should have, and he was sedated, not suffering extreme pain or, for that matter, any pain.  That is not "botched."

Vietnam Lethal Injection

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Ha An reports for Thanh Nien News:

The Hai Phong man who outraged the nation by killing and dismembering an ex-girlfriend was executed by lethal injection on Tuesday night, despite his pleas for mercy.
*                                    *                                  *
Nghia was watching his new girlfriend's apartment while she was out of town when he called Linh, his one-year college lover, to come over.

After they made love, he stabbed Linh to death, wrapped her torso in a blanket and stashed it on the building's rooftop.

He pawned her motorbike, laptop and mobile phone for VND5 million (US$240).

He was arrested on May 22, 2010 while hiding out in Thai Nguyen Province, one day after police discovered Linh's naked, rotting body.
*                                    *                                  *
Starting in late 2011, Vietnam officially switched from dispatching convicts with firing squads to lethal injections. An EU ban on exports of the lethal cocktail to Vietnam caused a lengthy backlog and drove many convicts to insanity and suicide--until Vietnam began manufacturing its own lethal serum.
So there is a source of supply.  We need the House of Representatives to slip a provision exempting lethal injection drugs from FDA importation requirements into a bill that the Senate politically cannot refuse to pass and the President politically cannot veto.  See prior post.
Ryan v. Wood, 14A82 (today):

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted. The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction. The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.
No dissent is noted.  That does not necessarily mean the decision is unanimous, but any Justice voting against the order, if any, did not feel strongly enough about it to have it noted.

The Court denied Wood's motion for stay and petition for certiorari in the parallel case seeking review of the Arizona Supreme Court's decision.

Wood's execution is set for 10:00 a.m. Mountain Standard Time tomorrow.  Arizona doesn't go in for that biannual clock-fiddling nonsense.  That's 10:00 a.m. PDT and 1:00 p.m. EDT.

Update (Wednesday, 7/23):  Yesterday the Ninth Circuit rejected an attempt by Wood to reopen his case via Federal Rule of Civil Procedure 60(b).  This morning the U.S. Supreme Court denied a stay of execution and writ of certiorari in that case.  No dissent is noted.

Update 2:  Now the Arizona Supreme Court has issued a stay, according to this AP story 1:41 p.m. EDT 7/23.

Update 3:  The 2:48 EDT update of the AP story (same link) says Arizona Supreme lifted the stay an hour later.  "The appeal focused on arguments that Wood received inadequate legal representation at his sentencing, along with a challenge about the secrecy of the lethal injection drugs."
Twenty-five years ago, the U.S. Supreme Court announced one of the most important decisions* in the modern history of criminal procedure, Teague v. Lane, 489 U.S. 288, 306 (1989).  Adopting a rule proposed by Justice Harlan 20 years earlier, the court decided that new rules of constitutional law would not be applied retroactively to cases that were already final on direct review at the time the rule was announced.  A corollary rule was that new rules could not be announced in habeas review of final convictions.

In his decision declaring California's death penalty unconstitutional, Judge Carney has this cursory discussion of the Teague issue:

The rule Mr. Jones seeks to have applied here--that a state may not arbitrarily inflict the death penalty--is not new. Rather, it is inherent in the most basic notions of due process and fair punishment embedded in the core of the Eighth Amendment. See Furman, 408 U.S. at 274-77 (Brennan, J., concurring) (describing the principle that "the State must not arbitrarily inflict a severe punishment" as "inherent in the [Cruel and Unusual Punishment] Clause" and tracing its application in Anglo-American jurisprudence); see also id. at 242 (Douglas, J., concurring) ("There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature."). This rule is certainly one "so deeply embedded in the fabric of due process that everyone takes it for granted." Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc). It is therefore not a new rule for Teague purposes. See id. ("[A] rule needs to be announced for purposes of Teague only if it's new.").
Judge Carney is breathtakingly ignorant of the most elementary principles for applying the Teague rule.

News Scan

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Colorado Residents Using EBT Cards to Buy Marijuana: According to an analysis conducted by National Review Online, welfare recipients in Colorado have been withdrawing thousands of dollars worth of their cash benefits at marijuana retailers and dispensaries since the state began selling recreational marijuana earlier this year.  Jillian Kay Melchior of National Review Online reports that in the last six months, more than $23,000 has been withdrawn at a variety of marijuana establishments across the state, however, officials have yet to determine how much was spent on marijuana exclusively because some of the stores sell groceries as well.  In order to combat the issue, the state has enacted an emergency rule restricting the use of EBT cards at marijuana shops, bars, liquor stores and gambling establishments.

Convicted Killer Released From Prison Early, Arrested for Murder Again: An Indiana man convicted of murdering his first wife more than 20 years ago has been arrested and charged with murder yet again after authorities say he killed his current wife over the weekend.  The Associated Press reports that 50-year-old Tony Degrafreed was convicted of murder and sentenced to 30 years behind bars in 1995, but was released early and paroled after spending just 12 years in prison.  Authorities arrested Degrafreed on Sunday, charging him with murder and separate assault charges for stabbing his wife's son in the chest, causing minor injuries.

Convicted Killer up For Parole Under New Law: A Massachusetts man convicted of murder and sentenced to life in prison at the age of 17 is now eligible for parole after the state ruled that minors can not be sentenced to life in prison without the chance of parole.  Angie Angers of WPRI reports that Anthony Rolon was convicted of murder and sentenced to life after authorities say he stabbed another teen to death at a party, and so far, has spent just 17 years behind bars.  In 2013, a Massachusetts court ruled it is unconstitutional to sentence a minor to life without parole because their brains are "not fully developed."

Arizona Moves to Vacate Wood Stay

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The State of Arizona has filed in the U.S. Supreme Court an application to vacate the stay of execution of murderer Joseph Wood, noted yesterday.  The case is Ryan v. Wood, 14A82.

The Ninth Circuit has a very helpful collection of the pleadings in this case.  The Supreme Court papers are in green.  The administrative folks at the Ninth really do an excellent job.  Now if we could only do something about the substance of the opinions . . .

Lest we forget what this case is about:

Too Much Safety

Justice William J. Brennan had a way with words.  One of the most memorable examples was his asking, in the lead dissent in McCleskey v. Kemp, why the majority was afraid of "too much justice."

Today, we need to ask why those arguing that the incarceration rate is the lodestar of the criminal justice system are afraid of too much safety.
From the Federalist Society:

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society's Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court's criminal law jurisprudence and fielded questions from a call-in audience.

    • Dean Mazzone, Chief of the Enterprise and Major Crimes Division, Massachusetts Attorney General's Office

    • Kent S. Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
Last Wednesday, I noted in this post some of the reasons why Judge Carney's decision in Jones v. Chappell (declaring California's death penalty unconstitutional due to delays in execution) was wrong.  The opinion is wrong in so many ways that it will take a number of posts to catalog them.

To that end, former California Supervising Deputy Attorney General James Ching has this post at giving some more reasons:

There is no doubt that the District Court condemns only state processes: "The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute."
The placing of blame is underlined by the District Court's failure to address any federal responsibility for the delay or to issue relief against the federal courts. However, if "[a]rbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises," it must surely apply to the 46.2% of the total delay and dysfunction.
Today's News Scan notes the stay of execution granted by a divided panel of the Ninth Circuit to Arizona murderer Joseph Wood so he can litigate his supposed First Amendment right to information about the source of Arizona's execution drugs.  The Ninth swiftly denied rehearing en banc with a dissent joined by 11 of the courts active judges.  The split was largely but not entirely on party-of-appointment lines, with Clinton appointee Richard Tallman and Obama appointee John Owens joining the dissent and Bush appointee Richard Clifton not joining it.

I have no doubt this case is headed for the Supreme Court.  It might be there already.

News Scan

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AZ Murderer Granted Stay of Execution: A federal appeals court has ruled to delay an Arizona man's execution until prison officials reveal details on the two-drug protocol to be used to put him to death.  Jacques Billeaud and Andrew Dalton of the Associated Press report that Joseph Wood's attorneys argued that the murderer's First Amendment rights were violated when officials refused to disclose the source of the drugs and how they would be administered.  Wood was sentenced to death for the 1989 murders of his estranged girlfriend and her father, he was originally scheduled to be executed Wednesday afternoon.

Thousands of Drug Felons set to be Released: The U.S. Sentencing Commission has unanimously voted in favor of retroactively reducing prison sentences for more than 46,000 drug offenders currently serving time behind bars.  Eric Tucker of the Associated Press reports that tens of thousands of these inmates may now be eligible for early release in what officials are calling a 'cost-cutting' proposal aimed at reducing the nation's prison population.  The releases would begin happening in November 2015 and continue on for a period of years.

FL High Court Debates New Juvenile Sentencing Law: Florida's Supreme Court is debating whether or not a new law changing the state's juvenile sentencing guidelines should apply retroactively.  Margie Menzel of The News Service of Florida reports that the new law, HB 7035, which went into effect July 1, requires a hearing in cases involving juvenile murderers facing a life sentence to determine if that sentence is appropriate.  If the life sentence is determined inappropriate, the murderer can  instead by sentenced to a minimum of 35 years in prison.

It's the Culture, Continued

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Persons of sense have known for a long time that the primary "root cause" of crime is culture.  Kids growing up are subject to influence from parents, peers, schools, and popular media.  These influences instill in the growing kids either an attitude that (1) they should "do the right thing" in obeying rules (in all but extreme circumstances) and respecting the rights of others or (2) it's every person for himself and they should take whatever they can get away with.

Empirical validation of theories is difficult in social sciences because we generally cannot do controlled experiments.  That is why, for example, much of the "evidence" touted for rehabilitation programs is tainted by selection bias, as noted in posts last February here and here

Every once in a while, though, we get a "natural experiment" where a comparison becomes available between two groups that do or do not receive some "treatment" or "intervention" selected in a way that gives us increased confidence that the "treatment" and not the selection of the groups is the reason for the difference in outcomes.

One such "natural experiment" is forthcoming in the next issue of Pediatrics.  It is titled, "Successful Schools and Risky Behaviors Among Low-Income Adolescents."  The abstract is here and is copied at the end of this post.  The AAP press release is here.  AP has this story.

The thrust of the story is that kids randomly selected to go to better schools have a variety of better outcomes, including reduced gang membership.
Four days ago, Russian-backed separatists using a Russian-supplied surface to air missile shot down a commercial passenger jet, killing the 298 people on board, all civilians. Since then, those same Russian-backed separatists have taken control of the crash scene, seized the "black box" (and reportedly sent it to Moscow), stuffed the bodies in a bunch of bags like they were picking up trash, stonewalled the mourning relatives, and generally behaved as you would expect from people who murder about 300 of their fellow creatures because, ya know, these rocket launchers are really cool and fun to set off.

News Scan

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Parolee Accused of Murder: An Arkansas man released from prison and placed on parole just two months ago has been arrested in connection with a Memphis murder that took place earlier this week.  Jason Pederson of KATV reports that 33-year-old Will Johnston has been in and out of prison for more than a decade, serving time for burglary, parole violations and drug offenses.  A study conducted by the Department of Justice shows that 38% of individuals on parole end up violating their release orders and are sent back to prison.

CA Family Outraged Over Death Penalty Ruling: A Northern California family fighting for justice for their murdered relative expressed outrage after a federal judge ruled the state's death penalty unconstitutional. Brian Chalk, who has been waiting since 1981 for the execution of his sister's murderer called the ruling a "slap in the face not only to families, but to every citizen."  Maria Medina of CBS Sacramento reports that murder victim Terri Winchell's family thought the the killer, Michael Morales, would finally pay for his crime in 2006, but two hours before his scheduled execution the state put all executions on hold.  The family fears that this ruling sends the message that California's worst murderers will never be executed.

High-Risk Sex Offender Released: A Canadian man with a lengthy history of violent and sexual offenses has been released from prison despite being a high-risk to the community.  Lara Schroeder of Global News reports that 41-year-old Rene James Everett was placed on a 10-year supervision order in 2009 and will be required to participate in a treatment program, police believe he is at high-risk level of re-offending; especially when it involves women or children.  Everett's criminal record includes convictions for sexual assault, robbery and weapons offenses.  

Prison Holiday

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The US Sentencing Commission voted to support more and earlier heroin (and meth and PCP et al.) trafficking.  It did so by deciding to make its already ill-advised all-comers-welcome reduction of the guidelines for drug sentencing fully retroactive. Here's the USSC press release.

Today I'll be flying back to the mainland from Hawaii, so I can't go into the detail this story deserves.  I'll say only two things.  First, the Commission's press release is astonishingly (and I have to believe intentionally) deceptive.  It states:

The Commission studied offenders released early after a similar 2007 amendment to the guidelines reducing sentences for crack offenders and found that those offenders were no more likely to re-offend than offenders who had served their original sentences.

How slick is that!  The newly retroactive guidelines apply to all drugs, not just the drug (crack cocaine) dealt with in the 2007 amendment.  And the recidivism rate for all drugs is 77%  --  an enormous figure, and more than twice the number the USSC had been trumpeting previously.  In other words, slightly more than three-quarters of drug offenders return to crime.  I guess it's no surprise that the actual drug recidivism rate is cleverly, if very conspicuously, invisible in the Commission's press release.

Second, one of the stated grounds for slimming down the federal criminal justice system has been its budget.  But re-litigating between 40,000 and 50,000 sentences will have gigantic costs.  How gigantic?  Well, we don't know, because the whole cost-of-re-litigation issue is swept under the rug by the Commission  -- the same Commission that undertook the guidelines reductions in the first place largely, it claimed, because of  -- you guessed it  --  its grave concern that costs are getting out of hand.

News Scan

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Recently Released Immigrant Accused of Murder: A Guatemalan immigrant, released by immigration officials after entering the country illegally last month, has been arrested and charged with murder after authorities say he killed his girlfriend Sunday in Louisiana.  Alicia A. Caldwell of the Associated Press reports that 43-year-old Pedro Monterroso was released by immigration authorities on June 26 after it was determined that he had no criminal history or gang affiliation and was issued a notice to report back once he got settled in the U.S.  Monterroso's girlfriend had also entered the country illegally earlier this year, but had successfully followed up with immigration authorities after settling in Louisiana.

Families Outraged Over Juvenile Parole Bill
: Families of murder victims in Massachusetts are outraged after lawmakers announced plans to water down parole guidelines for juveniles convicted of first-degree murder.  Christian M. Wade of Newbury Port News reports that the new legislation would make juveniles convicted of first-degree murder eligible for parole after serving 20 to 30 years behind bars.  The law would only affect murderers convicted after the new legislation is enacted.

Gang Members Lead Police on Deadly Chase: Three men led Stockton, CA police officers on an hour-long chase after authorities say they robbed a bank, took three women hostage and fired shots at responding officers.  Sarah Heise of KCRA reports that by the end of the pursuit, two of the robbers and one hostage were killed.  The third robber was arrested and the two surviving hostages were hospitalized.  All three of the robbers were known gang members, two of which had prior convictions for narcotics, firearms and domestic violence.

Baghdad Harry

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Alexander Bolton of the Hill covers  Senate Majority Leader Harry Reid's statement to reporters yesterday assuring the nation that America's southern border is secure.  He made this remarkable statement as news video streams across the airwaves showing tens of thousands of foreigners flooding across the border into Texas, Arizona and New Mexico overwhelming the already inadequate border patrol and forcing agents to become caregivers to thousands of Central American children rather than a security force looking for drug smugglers and terrorists.   In the face of what is clearly a complete breakdown of U.S. border security Senator Reid is trying to BS the entire country.  Some may remember Mohammed Saeed al-Sahaf, Saddam Hussein's Minister of Information better known as Baghdad Bob, who in April 2003 stood in front of cameras on a Baghdad street and announced that Saddam's army had repelled coalition forces, while U.S. tanks were passing behind him. 

Summing up the Jones Death Penalty Case

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Every now and again, an anonymous Internet commenter hits the nail on the head, and one calling himself "Daniel" did so in summing up the Jones v. Chappell decision:  "The judiciary gets to make a hash of the death penalty and then claim the death penalty is unconstitutional because they made a hash of it."

Middleton Executed in Missouri

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Despite the best efforts of an obdurate judge and a ready-to-fudge-it shrink, the Eighth Circuit and the Supreme Court saw through it, and the state of Missouri executed multiple killer and meth dealer John Middleton.  Here's the story:

For the sixth time this year, Governor Jay Nixon declined to grant clemency to a death row inmate minutes before the execution deadline. John Middleton, a former meth-dealer convicted of three grisly murders in 1995, was injected with a dose of pentobarbital at 6:58 p.m. and pronounced dead at 7:06.

Middleton had spent nearly two decades in prison since his conviction in 1997. He was 54 years old.

Last night, U.S. District Court Judge Catherine Perry halted the former meth dealer's execution less than two hours before the 12:01 a.m. deadline, arguing that Middleton's demonstrated mental health issues "[have] made a significant threshold showing he is incompetent to be executed," and that he should be granted a legal hearing to evaluate his sanity.

In an affidavit, a psychologist who examined Middleton stated he "lacks a rational understanding of the reason for the execution and is therefore not competent to be executed due to a diagnosis of delusional disorder, a psychotic mental illness."

I might add that Judge Perry already had one stay lifted by her superiors, as Kent noted, but, hey, what the heck, she granted another on approximately the same grounds anyway.  (I'll abjure for the moment any comment on the sick irony of Judge Perry's doing her best to add yet more delay to the 19 years it took to carry out the sentence on the very day her colleague across the country was finding that the death penalty is unconstitutional because of too much delay).

[Editor's Note: The U.S. Supreme Court orders denying stay, writs of certiorari, and original habeas corpus are here, here, here, and here.  No dissents are noted. -- KS]

Miranda is one of the Supreme Court's most flagrantly lawless decisions.  One can agree, as I generally do, that it's wise as a policy matter to help insure the voluntariness of a defendant's statement by advising him that he has no obligation to make one, while still being clueless as to where in the Fifth Amendment the failure to give such advice per se makes the statement "compelled" and thus automatically subject to exclusion.

The most coherent, although still inadequate, excuse for the Court's effectively splicing Miranda warnings into the Fifth Amendment is that such is necessary, or at least very useful, as a "prophylaxis" to insure  --  without the courts having to examine each case in its own inscrutable detail  --  that the defendant's statement was in fact voluntary.  (Of course this rationale' disintegrates as soon as the ink is dry, because even defendants who admit they've been given the warnings are still able to, and routinely do, raise voluntariness challenges on all manner of other grounds  -- challenges the courts must decide long after the litigants have walked away from the Miranda motion).

I say this to make a point:  Miranda establishes, for good or ill, that the Court can adopt specific prophylactic rules to safeguard a defendant's constitutional rights. And Miranda is going on fifty years old.  Especially after the Court re-affirmed Miranda in Dickerson, it's too late to un-ring the prophylactic rights bell.

Today's death penalty decision from the district court in California thus gives us an unexpected but important lesson:  It's time to apply Miranda's ad hoc creativity to safeguard a defendant's rights, not under the Fifth Amendment, but under the Eighth. 

The Lackey Claim, Again

It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant.  That was in Lackey v. Texas, 514 U.S. 1045 (1995).  The full court has turned the claim down every time.  Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.

Prior posts on the high court's rejection of Lackey claims are here, here, here, here, and here.

Justice Thomas noted in Knight v. Florida, 528 U.S. 990 (1999):

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.
Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California.  The order is here.

Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay.  But the retribution interest, at least, is still there.  The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.

The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families.  See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9).  The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.

All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.

The facts of the particular case follow the break.

News Scan

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NJ Lawmaker Seeks to Restore Death Penalty: After this weekend's killing of a New Jersey police officer, a state lawmaker is pushing to restore the death penalty for individuals convicted of killing police.  The Associated Press reports that Assemblyman Ron Dancer is pushing lawmakers to reinstate the death penalty as punishment not only for police officer killings, but for those convicted in child murders and murders committed by terrorists as well.  New Jersey voted to abolish the death penalty in 2007.

TN Woman Convicted Under new Drug Law: A Tennessee woman was ordered to spend 12 years behind bars after being convicted under a new law that allows judges to send expectant mothers who use drugs while pregnant to prison.  News Channel 9 reports that 27-year-old Lacey Weld was sentenced to more than twelve years in prison and five years of probation after being convicted of both using and manufacturing methamphetamine while in her ninth month of pregnancy.  Weld also plead guilty in 2013 to federal charges of conspiracy to manufacture methamphetamine.

OK Lawmaker to Explore Other Methods of Execution: A study conducted by an Oklahoma lawmaker will examine different methods of execution, and possibly recommend that the state bring back the firing squad, hangings and the electric chair.  Brian Shlonsky of KOCO reports that Rep. Mike Christian will look at current execution protocols, procedures and alternatives as well as exploring the idea of allowing members of the victim's family to have a say on how the inmate is executed. Christian got involved with death penalty reform after this year's botched execution in Oklahoma.  He was quoted as saying; "People say that Clayton Lockett suffered, but people tend to forget about the victim."

On Deterrence

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Last year, many of us enjoyed watching Tom Hanks play the title role in the movie Captain Phillips, who had to deal with the takeover of a freighter by pirates off the Somalian coast.  The movie, which was based on a true story, bothered me because, while piracy in those waters was a nationally reported issue and well known to freighter companies and crews at the time the Maersk Alabama was captured, these huge ships remained virtually defenseless to the lightly armed groups of unsophisticated pirates in small boats.  A story published Monday in the Christian Science Monitor reports that things have changed dramatically over the past couple of years.  In 2011, 237 ships were attacked by pirates around northeast Africa.  So far this year there have been seven attacks which all failed.  What happened?  Warships were dispatched to patrol the area and the shipping companies hired armed security guards to repel the pirates.  The pirates who have been captured have been prosecuted and imprisoned.  Interviews with gang leaders who had previously managed the pirates and the pirates themselves reveal that, due to the increased consequences for piracy, it is no longer worth the risk.  This is called deterrence. 

The Training of Federal Agents

Even though I was at one point Counselor to the Administrator of the DEA, I did not know this until just now:  The DEA, along with the FBI, Immigration and Customs Enforcement,  the Secret Service and the U.S. Marshals, sends its agents-in-training to the Holocaust Museum to give them a close up look at what happens when legitimate law enforcement morphs into a police state.

I wonder how many of those who routinely accuse federal agents of being Nazis have ever even visited the Holocaust Museum.
Today's News Scan noted that a federal district court had stayed the execution of Missouri triple murderer John Middleton.  The U.S. Court of Appeals for the Eighth Circuit has vacated that stay, Jim Salter reports for AP.
Ever heard the complaint that the criminal justice system punishes only the poor and powerless?

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