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State Legislative DP Notes

There are legislative happenings in Alabama, Florida, Mississippi, and Iowa on the death penalty.

In Florida, it seems that they are barrelling down the road to a single-juror veto law, and nobody is even raising the alternative of a true unanimity law.  Why the state's prosecutors are not up in arms about this just baffles me.

Seriously, folks, do you really want a system where a hard-core opponent of the death penalty can lie on Witherspoon-Witt voir dire to get on the jury, cross his arms in deliberation and just say "no, no, no, no matter what," and impose his will over the judgment of the other 11 jurors?  That is what you will get if this train isn't stopped. 

Require unanimity one way or the other or at least a majority for a life verdict, and otherwise declare a mistrial and retry the penalty phase with a new jury.

The Alabama Senate voted 30-1 to end judicial overrides of jury penalty verdicts in capital cases.  Brian Lyman has this story for the Montgomery Advertiser.  SB16 provides that it is not retroactive.  It deletes the word "advisory" before "verdict" and requires the judge to sentence according to the verdict

Existing law says that a jury can return a death verdict by a vote of 10 jurors or a life imprisonment verdict by a majority vote.  If neither of those thresholds is met (i.e., between 6-6 and 9-3), "the trial court may declare a mistrial of the sentence hearing."  That's fine except for the "may."  Could a judge allow a minority of jurors to prevail over the majority by declining to declare a mistrial?  Perhaps readers familiar with how things actually work in Alabama can enlighten us.
I have generally been in favor of "true unanimity" laws, requiring the jury to be unanimous one way or the other, just like in the guilt phase.  Even so, if the prosecution gets a majority voting against it on the first attempt, it is probably better to hang it up at that point.

The parallel House bill, HB 32, would require a unanimous vote for death.

In Mississippi, the Senate Judiciary Committee dropped the firing squad from a methods-of-execution bill passed by the House.  Willie Inman has this story for Fox News.

As it passed the House, HB 638 provided a list of executions methods, with each one to be used if the ones before  are "held unconstitutional ... or are otherwise unavailable":

1.  Lethal injection, specifying the old three-drug protocol.
2.  Nitrogen hypoxia.
3.  Firing squad.
4.  Electrocution.

I agree with dropping the firing squad.  There is a reason that death penalty opponents such as Deborah Denno favor it.  Painful or not, the grisliness of it will help them turn public opinion against the death penalty.

I also suggest they get cracking and make sure the nitrogen alternative is operational.  You can bet your bottom dollar that murderers will sue saying that the obsolete three-drug protocol is unconstitutional given the availability of the single-drug protocol, and if we succeed in making thiopental or pentobarbital available, that argument has some chance of success.  But nitrogen is better still, and maybe Mississippi will be the state that demonstrates it.

In Iowa, Rod Boshart reports for Quad City Times:

More than a half century after Iowa's death penalty ended, a group of Senate Republicans wants to allow capital punishment in cases in which an adult kidnaps, rapes and murders a minor.

Senate File 335 would restore capital punishment in Iowa for the first time since 1965 by establishing a two-pronged process in which a jury or judge could convict a perpetrator of committing multiple Class A offenses and separately make a decision whether to execute the offender by lethal injection.

Past attempts at restoration have failed, but Iowa has shifted conservative in recent years, and just in this last election it moved into the "full Republican control" category.

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