Recently in Death Penalty Category

Pakistan Resumes Executions

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Two convicted terrorists were hanged in Pakistan, AFP reports.

Pakistan hung two convicted militants in the first executions in six years and security forces killed more than 50 suspected militants on Friday (Dec 19) as the country's leaders vowed decisive action in the wake of a Taliban school massacre that left 149 people dead.

The bloody rampage in the northwestern city of Peshawar on Tuesday brought international condemnation and promises of swift, decisive action against militants from Pakistan's political and military leaders.

Pakistan's de facto foreign minister Sartaj Aziz told AFP the attack was his country's own "mini 9/11" and a game changer in its fight against terror.

Prime Minister Nawaz Sharif relinquished the six-year ban on the death penalty in terror-related cases two days after the school attack.

Two militants convicted of separate terrorism offences were the first to face the noose at a jail in central Punjab province, the province's home minister, Shuja Khanzada, told AFP.

The Tennessee courts issued this press release earlier this month.

The Tennessee Supreme Court will hear oral arguments on December 18 in Nashville in an appeal by the State opposing the requests of several death row inmates who are seeking the identity of individuals involved in the lethal injection process.

The appeal arises from a challenge to the constitutionality of the Tennessee Department of Correction's execution procedures for lethal injection on various grounds by 11 of the state's death row inmates.

A Note on Death Sentence Rates

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The DPIC report to be released tomorrow, noted in the previous post, will also make a big deal about the number of death sentences per year being much lower than it was at the peak of 1996.  The regular drumbeat from the other side talking about sentencing and incarceration numbers as if they were independent of crime rates continues to both amaze and dismay.  Even worse is that people who should know better take this seriously.

Instead of the irrelevant number of death sentences, we should begin by looking at the number of sentences relative to the number of homicides.  Homicides rates have dropped nearly in half since the mid-90s, due in part to the tough sentencing that our opponents so strenuously opposed.  Using a two-year lag (death sentences over murders of two years earlier), the number of death sentences per 1000 murders this year was 38% of what it was in 1996.  That is a large drop, but not nearly as large as the irrelevant number you get comparing the simple count of sentences.

Why the drop?  Well, we have always said that the death penalty should be reserved for the worst of the worst.  In the early days after the restoration of capital punishment, it was not too unusual to see a death sentence for a simple robbery in which the victim was killed with no other major aggravating circumstances.  That is much less common today.  Prosecutors are more selective in seeking the death penalty, and juries are more selective in imposing it.

The other side has always said that is how it should be.  Now that it increasingly is that way, they cite that change as evidence that America is turning away from the death penalty.

Update:  David Savage has this story in the LA Times.

Update 2:  The Wall Street Journal, disappointingly, completely blows it by uncritically regurgitating the DPIC's spin.  Not a single mention of the drop in the murder rate over the same period.

Exoneration Inflation, Continued

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Of all the propaganda efforts of the anti-death-penalty movement, the most successful has been the notorious "innocence list," which can be found on the website of the Death Penalty Information Center.  Six years ago, Ward Campbell published in the IACJ Journal (Institute for the Advancement of Criminal Justice) an article titled Exoneration Inflation noting the various ways that people have been included on the list even though they had not been determined to be actually innocent or if their cases were simply irrelevant to the debate over the present system because they were sentenced under a different, since-abandoned system.

Surprisingly, three of the latter made it on to the notorious list just this year.  Three men convicted in Ohio for a 1975 killing and removed from death row just a couple of years later when the statutes were struck down have now been released altogether.  It is indeed regrettable that they spent so much time unjustly in prison, but the cases have nothing to do with the current death penalty debate.  They were not sent to death row under a law anything like any law now in effect in the United States or that has been in effect for 36 years.

In a report to be released tomorrow the DPIC will crow about a "record" number of "exonerations" of "former death row inmates," but the fact that these three were briefly on death row under a long-ago abandoned system has no relevance to our current capital sentencing system.

Ohio Execution Drug Bill Advances

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The Ohio Senate yesterday passed, 20-10, HB 663 to provide confidentiality to the compounding pharmacies who supply drugs for lethal injection.  Opponents made the usual noise about transparency in government, but their real purpose is to facilitate harassment.  Jim Siegel and Randy Ludlow have this story in the Columbus Dispatch:

The pharmacies "have become subjected to not just criticism but downright attack, boycotts and picketing at their homes," said Sen. John Eklund, R-Chardon. "Consequently many of these pharmacies have become unwilling ... to subject themselves to that aggravation."
Earlier, the Senate caved in and deleted a provision that would have outlawed resale restrictions in contracts for sale of drugs.  Objections were made that the provision might have violated the Contracts Clause and might have caused European companies to refuse to export drugs to the United States.  Both objections could have been eliminated by making the provision applicable only to drugs manufactured in the United States and only to contracts made or renewed after the effective date.  The primary need for the provision is for pentobarbital, which is manufactured in the United States.  Even so, the sponsors chose to delete the provision altogether.  Alan Johnson had this story yesterday in the Dispatch.

The bill returns to the House, where it passed 62-27 last month.

CJLF Brief in Jones v. Davis

CJLF has filed an amicus brief in the case where a federal district judge ruled that the long delays in executing murderers in California are a violation of the defendant's rights.  The delays are a violation, of course, but not of the defendant's rights.  The delays are a violation of the rights of the victims, which includes the family of deceased victims, under both a federal statute, 18 U.S.C. § 3771, and the California Constitution, Article I § 28. The remedy is for judges both state and federal to get off their duffs, stop tolerating stalling by the defense, and move these cases along.

If Virginia can execute the D.C. Sniper in less than six years from sentence to execution, other states can do the same no matter how complex the case.  In the rare case of actual doubt that we have the right guy, fine, delay as long as it takes to eliminate the doubt, and commute the sentence if it can't be eliminated.  In all other cases, i.e., the vast majority of cases, there is no need to delay more than six years.  That is plenty of time to resolve all genuine claims. 

After all, if we know to a certainty that the defendant is a murderer, there is no possibility of a miscarriage of justice in the sentence.  The question in the penalty phase is whether to give him what he deserves as a matter of justice or let him off with less as an exercise of mercy.  That is an important question, and its decision must be made carefully and reviewed carefully, but the outcome cannot be an injustice to the defendant.

The idea that we need to spend more time and resources reviewing the sentences of certainly guilty murderers sentenced to death than we spend reviewing the convictions of possibly innocent people sentenced to life in prison is absurd.

Executions in Missouri and Georgia

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As Bill notes, Georgia executed cop-killer Robert Wayne Holsey yesterday.  See also my post on the stay denials.

Also last night (technically the wee hours of this morning, as Missouri still sets executions dates as a single calendar day), Missouri carried out an execution.  CBS and AP have this story on both executions, considerably more balanced and informative than the NBC story linked in Bill's post.

A Missouri inmate was put to death early Wednesday for fatally beating a 63-year-old woman with a hammer in 1998, the state's record 10th lethal injection of 2014, matching Texas for the most executions in the country this year.

In Georgia, a man convicted of killing a sheriff's deputy moments after robbing a convenience store in central Georgia was executed Tuesday night.

The Missouri case involved Paul Goodwin, 48, who sexually assaulted Joan Crotts in St. Louis County, pushed her down a flight of stairs and beat her in the head with a hammer. Goodwin was a former neighbor who felt Crotts played a role in getting him kicked out of a boarding house.

Goodwin admitted committing the crime after his arrest.

Robert Wayne Holsey Executed

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Robert Wayne Holsey was executed in Georgia last night after the usual last-minute appeals were denied.  The NBC News story has the following 17 words tucked in, skipping lightly over the reason Holsey received his sentence: the clock ticked down to his execution for the 1995 murder of sheriff's deputy Will Robinson.

That was fast!

The less abrupt part of the story says nothing about Holsey's behavior.  It does, however, go on to blame Holsey's trial lawyer, the defendant's low IQ, and the barbaric people of Georgia:

"Robert Wayne Holsey is an intellectually disabled African-American man who was represented at trial by a chronic alcoholic who was more concerned about avoiding his own criminal prosecution than defending his client against the death penalty," his current lawyer, Brian Kammer, had said before the execution, which was carried out at 10:51 p.m. ET -- an hour after the court rejected the plea.

Kammer had argued that a U.S. Supreme Court ruling in May that found Florida's standard for proving intellectual disability was too strict also applied to Georgia's rules. "We will keep challenging the burden of proof that Georgia requires. It is too heavy," Kammer said late Tuesday night. "It's the heaviest burden of proof in the law and guarantees that the mentally ill will be executed." Holsey's appeals had also argued that he did not have effective legal counsel because his lawyer admittedly was drinking up to a quart of vodka a day. 

Usually, the way to have a lower court's decision reviewed by a higher court is to appeal.  In the U.S. Supreme Court, an actual "appeal" in the technical sense is usually not available, and a petition for writ of certiorari is used instead.

Sometimes, though, neither of these procedures is available, and the aggrieved party must resort to an "extraordinary writ," a petition for a writ of prohibition or mandate.  In form, this is a new suit by the petitioner against the lower court itself, designated the "respondent."  In practice, the opposing party in the lower court is designated the "real party in interest," and that party defends the lower court's action.  That avoids the need for a court to appear as a party, generally regarded as unseemly.

And now, for something completely different....

In re Ryan, U.S. Supreme Court No. 14-375, is a petition by Arizona's prison chief against the Ninth Circuit for sitting on a case after it should be over.  As usual, the opposing party in the court below, the Arizona Federal Defender on behalf of murderer Graham Henry, filed an opposition.  But yesterday, the Supreme Court asked the Ninth Circuit itself to file a response.
The Supreme Court of Georgia denied a stay of execution to Robert Wayne Holsey, who shot and killed Baldwin County Deputy Sheriff Will Robinson in December 1995.  A press release is here.  Holsey wanted the determination that he is not intellectually disabled reconsidered after Hall v. Florida.

The US Supreme Court subsequently denied a stay 7-2.  Justices Breyer and Sotomayor would have granted the stay.

Execution Delayed by Paperwork

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Lou Antonelli reports for the Mt. Pleasant (Texas) Daily Tribune:

The killer of Vicki Garner, who was murdered in Tyler in 1996, has delayed his date with the execution chamber in Huntsville for at least another month as a result of a paperwork snag.

Family members were bitterly disappointed when they learned the Texas Department of Criminal Justice (TDCJ) cancelled Robert Charles Ladd's execution - which was to have been held this Thursday, Dec. 11 - because of a paperwork delay.

"It was a crushing blow," Teresa Wooten, the sexual assault director at the SAFE-T women's shelter, said. "We had all worked so hard to set this date by the end of the year."

Lying About Death Penalty Alternatives

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Today, more so than usual it seems, I'm being pelted with some of the less than truthful statements our adversaries employ. The one I'll discuss in this post is many years old; the reason I bring it up now is the fresh evidence of the degree of cynicism our opponents are willing to indulge. 

For years, abolitionists have told us that we'll be just as safe, or perhaps safer, if we replace the death penalty with LWOP.  This pitch has become so standard that it's now part of Gallup's polling on the question (emphasis added):

If you could choose between the following two approaches, which do you think is the better penalty for murder  --  the death penalty or life imprisonment, with absolutely no possibility of parole.

In fact, the leaders of the abolitionist movement have zero intention of supporting life imprisonment with absolutely no possibility of parole.  If there were any doubt about this, it was brought to an end by this article from the Marshall Project. The piece is partly about William Blake, a murderer convicted in New York, sentenced to LWOP (since that state has no death penalty), and held in solitary because of his dangerousness.  The article's final paragraph states (emphasis added):

William Blake has said that while he cannot bring himself to take his own life, he would have welcomed the death penalty...had he known what a lifetime in solitary confinement would be like. Perhaps the time will come when people like Blake--and the American public--are not forced to choose among such monstrous alternatives. In the meantime, it will be a shame if people who oppose state-sponsored death continue to advocate for state-sanctioned torture. 

My hat is off to the authors for, at least, their candor.

USCA5 Grants Stay to Panetti

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The U.S. Court of Appeals for the Fifth Circuit issued this order in the case of schizophrenic Texas murderer Scott Panetti:

We STAY the execution pending further order of the court to allow us to
fully consider the late arriving and complex legal questions at issue in this
matter.1 An order setting a briefing schedule and oral argument will follow.

1. See 28 U.S.C. § 2251(a)(3); McFarland v. Scott, 512 U.S. 849, 858 (1994).
See also my prior posts here and here.

Nathan Koppel has this article in the WSJ.  Dustin Volz has this article in the National Journal.

Jones v. Chappell Brief

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The California Attorney General yesterday filed this brief in Jones v. Chappell, the case of the strange District Court order reaching out to declare California's death penalty unconstitutional because of delays.

Warden Chappell has left the building, and the acting warden is Kelly Mitchell.  The case will be Jones v. Mitchell for the time being.

For Appointment of Counsel: Get Moving

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Kent may have more to say about one of the cert. denials this morning, that being in Redd v. Chappell, No. 14-6264.

Justice Sotomayor, joined by Justice Breyer, wrote a statement respecting denial of cert. The State of California has not appointed counsel to represent this capital inmate in his state habeas proceedings seventeen years after he was sentenced to death and four years after the completion of his direct appeal. This is so notwithstanding a state statute that requires such appointment.  (The state court prohibits pro se submissions when the inmate has a continuing right to representation).

I will leave it to others to decide whether there should be a right to a lawyer to pursue collateral relief after the defendant has received one comprehensive and fair review of his claims.  But when California by statute provides for such a right, it's obvious that the state needs one more statute  --  one that provides for appointment to be made within 90 days of the time direct review becomes final, and that the habeas brief be filed a maximum of six months after that.  The penalty for any lawyer who refuses court appointment or misses the deadline will be suspension from practice for one year.

There might be good reasons for some aspects of the delay in capital cases. There is none for appointing counsel and getting your work done.  Abolitionists live off the delay they egg on.  It is time for this game to stop.

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