Recently in Death Penalty Category

Phone Access During Executions?

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Because of what are said to be "botched executions," abolitionists (both those who admit they are and some who don't) are pushing for the right to have access to phones during the execution process so that they can reach judges in the event of, shall we say, incipient botching.

Should they get it?

Kent and I think not.  We are quoted in a balanced article by Jordan Rubin in Bloomberg BNA.

"If we are to have an effective death penalty, as the Supreme Court has said the Constitution allows, then, at some point, the opportunity for litigation must come to an end," William Otis told Bloomberg BNA via email.

Evolving Standards of Denial

Kent noted SCOTUSblog's end-of-Term symposium on the death penalty.  I was briefly invited to write a piece for it, then dis-invited within a matter of hours.  This may have been because the hosts wanted to avoid a surplusage of death penalty backers (I would have been the third; there are five abolitionists writing).

The symposium features what has become the usual abolitionist mix of (1) grasping at straws of hope and (2) down-in-the-mouth despair, but I admire the authors' ability to get so much written down so quickly.

The concluding paragraph of one of the entries drew my attention.  It is this:

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: "[R]ather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

I think there's a problem here.
SCOTUSblog has a symposium on the U.S. Supreme Court's capital cases this term.  The index of posts is here.

My contribution is here.

Abolitionism Hits Bottom

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I've said a number of times, e.g., here, that the push to abolish the death penalty has, after years of making headway, probably gone as far as it's going to get. 

One way I check this is to look at the mid-year execution numbers.  As of now, the country has executed 13 killers in 2017.  That would extrapolate to a total of 26 over the year, six more than last year.  If that's the way it holds, it will be one of the few times over the last two decades that we've had more executions in one year than in the preceding year. See this graph

I also look at Supreme Court cases to see who is voting which way.  Today, Justice Kennedy voted with Justice Thomas's majority opinion in Davilla v. Davis, noted briefly by Kent here.  He did so without writing separately from Thomas's strong and disciplined analysis, just as he cast his vote without separate opinion in the Court's extremely important work in Glossip v. Gross.  It seems to me that Justice Kennedy's once seemingly skeptical view of capital punishment (see Roper v. Simmons) is not what it used to be.  It may also be worth noting that, if Justice Kennedy steps away from the Court in the near future, his replacement is likely to be a solid death penalty backer, as is  --  to add to my main point  --  the Court's youngest member, Neil Gorsuch, whose votes continue to be everything capital punishment advocates could have hoped for.

Finally, as the sickness of a skyrocketing murder rate continues to afflict the country, now into its third year, support for the strongest antidote is correspondingly likely to rise. This too is what history tells us.  --  support for the death penalty rose massively until several years after a spiraling murder rate started to decline.

Longtime death penalty abolitionist Prof. Austin Sarat has written an essay admitting what many of us have known for years:  The electorate favors the death penalty and it's not that close.  If the electorate's will is to be honored, we will keep it.  The obvious corollary is that, if it is to be ended, electoral will must be overcome.

I thought part of Prof. Sarat's essay was unusually frank.  It notes that, in deep blue California, voters last year passed Prop 66, which

...designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals - all in an effort to speed up executions....

At the same time they approved Proposition 66, California voters also defeated Proposition 62, a measure that would have ended the death penalty for murder and replaced it with life in prison without parole.

Two-thirds of Oklahoma voters supported State Question 776 in November. That question declared that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution." It opened the way for Oklahoma to employ the gas chamber, electrocution or the firing squad if lethal injection is declared unconstitutional or is "otherwise unavailable."

The Nebraska electorate, by a margin of 61 percent to 39 percent, reinstated the death penalty just one year after state legislators voted to abolish it.

But the most candid admission comes after that.

Prop. 66 Oral Argument Video

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The video of the June 6 oral argument in California's Proposition 66 case, Briggs v. Brown, is now available.  The court's argument archive page is here.  The argument is preceded by a tribute to Justice Werdegar, who is retiring this summer.  It begins 27 minutes into the video.  My 10 minutes begin at the 1:11 mark.  My day-after post on the argument is here.

Proposition 66 Oral Argument

Yesterday the California Supreme Court heard oral argument in Briggs v. Brown, the case challenging Proposition 66, "the Death Penalty Reform and Savings Act of 2016."  The petitioner, Ron Briggs, who is challenging the initiative, was represented by Christina Von der Ahe Rayburn.  The named respondents are Governor Brown, Attorney General Xavier Becerra, and the Judicial Council, represented by DAG Jose Zelidon-Zepeda.  The Proposition 66 campaign committee, Californians to Mend, Not End, the Death Penalty, successfully moved to intervene in the case, and I represented the committee at the argument.  The hour was divided 30-20-10.

The argument was streamed live.  For those who didn't catch it, a link to the archived video should be posted within a week is now available on this page.

The petitioner's challenge is a scattershot attack, challenging many provisions of the initiative in an effort to bring the whole enactment down.  Press accounts of the argument focused on the issue that was discussed at length, the requirement that the direct appeal and initial habeas corpus petition be completed within 5 years.  In my view, the more important indication from the argument is which issues did not produce any questions for our side from the justices.

It is always dicey to predict from oral argument, but from what does not seem to be seriously at issue, it appears unlikely that the court will invalidate the initiative as a whole or any a substantial portion of it.

The Sometime Virtues of Globalism

As of last week, the United States was in bed with the following countries on a hotly debated issue of international importance and grave moral consequence:  China, Iran, Iraq, Saudi Arabia, North Korea, Afghanistan, Somalia, Cuba, Libya, Uganda, Bangladesh, and Namibia.

Question:  Can you name the issue?

Eighth Time's the Charm

Hit man and repeat murderer Thomas Arthur was finally executed in Alabama last night after dodging seven prior execution dates.   Kim Chandler has this story for AP.

Arthur filed a last-minute petition in the U.S. Supreme Court, and Justice Thomas (the assigned Circuit Justice for the Eleventh Circuit, including Alabama) granted a temporary stay while the Court considered it.  The Court lifted the stay and denied relief barely in time for the execution to be carried out before the warrant expired at midnight.

The petition had to do with the state's use of midazolam as the first drug of the protocol.  An additional wrinkle was the defendant's request for his lawyer to have a cell phone to make a call if things went badly.  Justice Sotomayor dissented alone.

The midazolam problem is entirely artificial and entirely unnecessary.  The federal government needs to bring down the barriers that are presently preventing the states from importing barbiturates from willing suppliers in Asia.  Is anyone in the government paying attention?

Update:  Kim Chandler and Jay Reeves have this follow-up story for AP on racing the clock.
The oral argument before the California Supreme Court in the suit challenging Proposition 66, the death penalty reform initiative, is set for Tuesday, June 6 at 9:30 a.m.

California's nomadic Supreme Court hears arguments in Sacramento and Los Angeles as well as its headquarters in San Francisco, and this argument date is in L.A.

That's D-Day, appropriately enough.  We are anxious to head south, storm the beach, and engage in the battle, hopefully winning a major victory for justice.
In 1992, J.W. Ledford murdered Dr. Harry Johnston in Murray County in northwest Georgia.  As long-overdue justice for this crime approached, Ledford's lawyers argued that execution with pentobarbital (the preferred drug, which Georgia still has as other states run out) would be excruciatingly painful in his case because his long use of a painkilling medication had raised his tolerance level.  Kate Brumback has this story for AP.  It was a far-fetched claim, given that lethal injection involves a massive overdose.  So how painful was it?

Records from past executions show that the lethal drug generally starts flowing within a couple of minutes of the warden exiting the execution chamber. Ledford raised his head to look at his right arm right after the warden left and about a minute later appeared to speak to a guard to his right.

He then rested his head, closed his eyes and appeared to take several deep breaths before falling still within two or three minutes of the warden leaving the room.
In other words, the pentobarbital worked exactly as it should have.

Let's not forget what Ledford did to deserve his punishment.
Immediately after last November's election, two lawsuits were filed by the anti-death-penalty crowd in California.  One of them, in the California Supreme Court, seeks to block the voter-approved reform measure, Proposition 66.  Briefing in that case is completed, and we are waiting with bated breath for oral argument to be set.

The second case was filed by the ACLU in Superior Court in Oakland, Alameda County.  This suit claims that the statute specifying lethal injection as the method of execution and leaving it to the Department of Corrections and Rehabilitation (CDCR) to fill in the details violates the separation of powers.  This thesis has been rejected by courts nationwide except Arkansas.  Seriously, you would have to go all the way back to 1935 and the notorious "sick chicken case" to find such a cramped view of delegation in the federal courts or any but an aberrant few state courts. 

CDCR filed a demurrer.  That's legalspeak for "even if all the facts you allege were true, you would still have no case as a matter of law."  It's a way to get rid of a bogus case at the threshold instead of going to trial.

Judge Kimberly Colwell sustained the demurrer without leave to amend.  That's legalspeak for "You're outta here and don't come back."

The early pages of the order are background and rejecting CDCR's arguments why the court should not reach the merits.  The good stuff is the merits discussion beginning on the bottom of page 8.
Abolitionist Fordham Law Professor Deborah Denno has a book review out endorsing the prediction by another abolitionist, Professor Carol Steiker of Harvard, that the death penalty will be eliminated by the Supreme Court when it "seems right"  --  an intriguing phrase Prof. Denno does not further explain.

SL&P carries an enlightening quotation from Prof. Denno's piece, the last paragraph of which I'll quote below (emphasis added) and then analyze:

[T]he Review expands on some key contributors to the death penalty's decline that may have been obscured by the all-encompassing nature of the Steikers' regulation argument -- for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation.  Despite these influences, the Review finds the Steikers' prediction -- that, when abolition seems right, it will come by way of a "Furman II" Supreme Court decision -- to readily comport with the death penalty's trajectory over the last fifty years.

The odd thing is that Prof. Denno, though a capital punishment expert, seems to have next to no idea of what the "death penalty's trajectory over the last fifty years" has actually been.

Willingham Prosecutor Cleared

The anti-death-penalty crowd very earnestly desires a case of a demonstrably innocent person actually executed, and if they can't find a real one they will just invent one.  Employing the Lenin Principle, if they can simply repeat enough times that Cameron Todd Willingham was innocent of burning to death his baby daughters, he will become innocent.  The original New Yorker article on the case was a shameless piece of propaganda, as demonstrated in this post.  After the first year, it seemed like we were making some progress on balanced coverage, as noted in this post, but as time went on the only people interested in the case were those with an anti-death-penalty agenda, and that has become the overwhelmingly dominant narrative.

In their quest, they went after the original prosecutor in the case for a claimed Brady disclosure violation.  Interestingly, in Texas you can take a bar discipline case to a local jury, so that is what former prosecutor (and now judge) John Jackson did.

Regrettably, the only coverage on the decision I can find is by the Marshall Project, an advocacy group masquerading as journalists.  So we have to take the story with a heaping tablespoon of salt.  The WaPo is printing this report instead of devoting actual journalism resources to it.  Update:  Michael Kormos has this article on the verdict in the Corsicana Daily Sun, the local paper for the venue.  Regrettably, the article has no information on the trial or the evidence presented that convinced the jury the charges were groundless.

The Wichita Massacre on Remand

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John Hanna reports for AP:

Kansas' top court wrestled Thursday with whether it can mandate new, separate sentencings for two brothers facing execution for four notorious slayings that became known as "the Wichita massacre."

Jonathan and Reginald Carr had a joint trial and sentencing hearing over dozens of crimes in Wichita in December 2000 that ended with three men and a woman shot to death in a snow-covered soccer field. The crimes were among the most notorious in the state since the 1959 slayings of a western Kansas family that inspired Truman Capote's book "In Cold Blood."

This is the second time the Kansas court is considering whether the brothers -- who turned on each other at trial -- should have been sentenced separately. The court in 2014 listed their being tried and sentenced together as among the most serious flaws that made the court proceedings so unfair that the men should be re-sentenced, but the U.S. Supreme Court ordered another review.

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