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Thursday I noted a paper by Ernest Goss, et al. with a quotation that was purportedly from me but was completely false. I did not write those words, and the words report my study as finding the opposite of what I actually found.

If I received notice that a paper with my name on it contained a gross error, I would make the correction with scrupulous care and go over the correction with a fine tooth comb -- myself, not delegated -- to be very certain that the corrected paper was unimpeachably correct.  Evidently, Professor Goss does not share this view.  The "corrected" version remains a serious misrepresentation, either deliberately deceptive or with reckless disregard of the truth, which are morally about the same thing.
Bill noted earlier today the poll by the Institute of Governmental Studies at the University of California, Berkeley.  Let's look a little more at these data.

Four years ago, we defeated a death penalty repeal initiative, but the opponents got closer than they should have.  I believed at the time that the reason was not opposition to the death penalty as such but rather the success of the opponents in blocking enforcement of the death penalty and the absence of a reform alternative on the same ballot.

The topline results of the new poll tend to confirm this hypothesis.  For the repeal initiative, the poll found 45.1% in favor and 54.9% opposed.  For the reform initiative, the poll found 75.7% in favor and 24.3% opposed.  At a minimum, then, one fifth of the people of California intend to vote for both initiatives.  That is, if all of the 24.3% who intend to vote no on reform vote in favor of repeal, then 20.8% who intend to vote for reform also intend to vote for repeal.  If anyone intends to vote no on both, though I'm not sure why anyone would, then the "yes on both" vote is that much larger.  A large segment of the population of California is so fed up with the status quo that, although they would like to see the system fixed, they would rather scrap it than go on as we are.

The "crosstabs" are also interesting.  What would happen if California Democrats decided this issue by themselves?
A report out today from the Institute of Governmental Studies at the University of California at Berkeley states:

California voters oppose an effort to abolish the death penalty and strongly support a competing measure that would streamline procedures in capital cases, according to a new poll released today by the Institute of Governmental Studies at the University of California, Berkeley.

Respondents opposed the abolition measure 55.1 percent to 44.9 percent, while three out of four respondents supported the streamlining proposition, the survey found. Since the two measures conflict, if both should pass, the measure receiving more votes would take effect.

The poll used online English-language questionnaires to survey respondents from June 29 to July 18. All respondents were registered California voters, and the responses were then weighted to reflect the statewide distribution of the California population by gender, race/ethnicity, education and age. The sample size for the questions on the two death penalty initiatives was 1,506 respondents for one question and 1,512 for the other.

The chances that a UC Berkeley poll would overstate support for the death penalty are the same as the chances that I'll be giving $10,000 to Black Lives Matter.


Update:  See follow-up post.

I have been battling the opponents of the death penalty for a very long time.  In that time, I have found that the intentionally misleading half-truth is their weapon of choice, and I spend a lot of time correcting the mistaken impressions they intentionally create.

However, the opponents are not above outright lying when they think they can get away with it.  A whopper has just come to my attention from the state of Nebraska, where the people are going to vote on whether to abolish or retain the death penalty.

Ernest Goss, Scott Strain, and Jackson Blalock have released a paper titled The Economic Impact of the Death Penalty on the State of Nebraska: a Taxpayer Burden?  The paper is sponsored by the anti-death-penalty campaign.  On page 23 we find this:

According to Scheidegger,48 "There is no credible evidence that replacing the DP with LWOP will result in significant added trial costs to the state due to defendants refusing to plead guilty and forcing prosecutors to meet their burdens at trial. The few studies that have been completed support the proposition that the threat of the DP does not increase plea bargain rates."

48Kent S. Scheidegger, The DP and Plea Bargaining to Life Sentences, Criminal Justice Legal Foundations, Feb. 2009, p. 10.
Note the quotation marks.  The authors are not saying that this is their interpretation of my results.  They are saying that these are my exact words and my interpretation.  This is a bald-faced lie.
Shane Newell has this article with the above title in the LA Times.

Top Los Angeles County officials including Sheriff Jim McDonnell and Dist. Atty. Jackie Lacey have joined a November election battle, announcing support for preserving California's death penalty and reforming the state's appeals process.

The death penalty should be "for the worst of the worst," McDonnell said Monday night at an event dubbed, "Mend, Don't End California's Death Penalty."

"We want to be in a position to be able to say that there is a disincentive for the most horrific of murders," McDonnell said.

Also speaking out at the event was Orange County Sheriff Sandra Hutchens. The goal: opposing Proposition 62, which would abolish executions and replace them with life without parole, and supporting Proposition 66, which aims to speed up executions in California.
When Hurst v. Florida was decided earlier this year, I wrote a post titled Dangerously Sloppy Language in the Hurst v. Florida Opinion.  Sure enough, four of the five justices of the Delaware Supreme Court have now decided that the state's long-established and thoroughly vetted death penalty statute is unconstitutional.  That would be true only if one sloppy piece of obiter dictum wipes out the distinction between the eligibility decision and the selection decision crafted over decades and clearly set forth in numerous U.S. Supreme Court opinions.

The case is Rauf v. State.  See Justice Vaughn's dissent for the correct answers.

Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?  Let's hope so.
Sometimes the obvious stares you in the face.

One of the leading arguments used by death penalty opponents is that capital punishment costs too much.

Let's put to one side the fact that it costs so much mostly because those self-same opponents have spent decades larding it with manufactured procedural delays having nothing to do with either basic fairness or factual guilt.

Aren't the following two sentences a complete answer to the cost argument?

Expense is a reason to be selective and use the death penalty infrequently.  It is no reason to make it legally unavailable, ever. 

Cheever Follow-Up

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Today's News Scan notes the affirmance by the Kansas Supreme Court of the death sentence of Scott Cheever for the murder of Sheriff Matt Samuels in the performance of his duty.

This case was decided on remand from the United States Supreme Court.  The first time out, the Kansas Supreme Court reversed the conviction.   That court found a Fifth Amendment violation in the requirement that Cheever submit to a mental examination when he claimed a "mental disease or defect" defense.  The U.S. Supreme Court reversed unanimously in an opinion by Justice Sotomayor.  CJLF filed an amicus brief in the case.

On the first round, the Kansas Supreme Court considered only the penalty phase issues likely to arise on retrial because the case was going to be retried anyway.  On remand from the U.S. Supreme Court, they needed to consider in full whether to affirm the penalty.

One of the issues was whether the defendant was entitled to an instruction that the defendant need not prove his mitigating circumstances beyond a reasonable doubt.  The Kansas court had held that the Eighth Amendment requires this, but that holding was reversed last January by the U.S. Supreme Court in Kansas v. Carr.  CJLF also filed a brief in that case.  The state court can, and did, hold that the instruction is still required by state law.  However, because Cheever did not request the instruction a different standard of review applies, and the absence of the instruction was not so detrimental as to require reversal in this case.

Affirmance of this entirely just sentence is a good result, but long overdue.  It took so long because the Kansas Supreme Court erroneously decided two issues of federal constitutional law.  Kansas has the worst system of any state for appointing Supreme Court judges -- the State Bar is the gatekeeper to the bench -- and it shows.  Reform of this process should be top priority in that state.
Sacramento District Attorney Anne Marie Schubert has this op-ed in the Sacramento Bee, responding to an earlier piece by Ron Briggs.  Unfortunately, it is behind the Bee's paywall.

The reason that no executions have occurred in California for 10 years is the state's delay in drafting regulations for a method of execution. Otherwise, there could have been at least 15 sentences carried out during the past decade. It's outrageous that victims' families were forced to sue the state to draft these regulations. Proposition 66 will prevent biased and unsympathetic politicians and government bureaucrats from interfering with this process.
*                       *                      *
Briggs believes abolition will benefit victims' survivors by closing cases and sparing them further "wounds." That is offensive and presumptuous. In our experience, most survivors want "justice" for the murderers of their family members. Repealing the death penalty will not heal these peoples' wounds; it keeps them permanently open.

Briggs naively touts life without parole as a sufficient alternative to the death penalty. He forgets that the last murderer executed in California, Clarence Ray Allen, was sentenced to death for the murder of three people, which he planned while already serving a life sentence for murder. Life imprisonment was not enough to protect the public from Allen.

Moreover, victims' families will always be haunted by the specter that an inmate sentenced to life without parole will suddenly ask the governor to reduce a sentence - as happened recently in the case of a Fresno murderer who waited 36 years and applied for clemency. As long as an inmate sentenced to life without parole lives, the governor could reduce the sentence and a murderer may be released on the streets.
And yet another wrongly maligned prosecutor is exonerated.

AP reports from Manassas, Virginia:

For much of the last 15 years, Justin Wolfe was both a death row inmate and a cause célèbre. His supporters, as well as a federal judge who heard his appeal, believed he was a victim of malicious prosecutors who covered up the truth in an effort to execute an innocent man.

Now Wolfe's 15-year legal saga -- which at one point had him days from execution and later on the brink of total exoneration and freedom -- has concluded with a 41-year prison sentence and an admission that prosecutors had it right all along.
*                       *                    *
After years of denying responsibility for the 2001 murder of Daniel Petrole, Wolfe on Wednesday apologized to Petrole's family in a packed Manassas courtroom.
One of the ploys that opponents of the death penalty use to try to block it -- given that the American people are solidly against their real position -- is to drag out the appeals process for decades and then claim that it is cruel to keep people on death row for decades.

This is called the Lackey claim for Justice Stevens's solo opinion in Lackey v. Texas, 514 U.S. 1045 (1995).  After Justice Stevens retired, Justice Breyer took up the cause.  He reiterated his position last night in the last minute appeal of Georgia murderer John Wayne Conner.  But he is still alone.  No other justice joined his dissent.

Conner was executed at 12:29 a.m. Friday with the single-drug method using pentobarbital, Rhonda Cook reports for the Atlanta Journal-Constitution.  Georgia can apparently still get pentobarbital, the preferred drug for this purpose, though most states cannot.

The lethal injection drug shortage is entirely artificial and due in large part to the misinterpretation of the Food, Drug, and Cosmetic Act by the D.C. Circuit in Cook v. FDA, 733 F.3d 1 (2013).  Congress can and should correct that misinterpretation with a simple fix.

USCA9 Corrects DP Error En Banc

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It should not be news that a federal court of appeals sitting "en banc" has corrected an erroneous decision by a three-judge panel.  That's what the en banc process is supposed to do.  However, in the Court of Appeals for the Ninth Circuit it has long been rare that a rogue panel decision wrongly overturning a death sentence was even reviewed en banc, much less corrected.  At times, petitioning for such a rehearing has been considered such an exercise in futility that some AG offices would not even bother but would instead go straight the Supreme Court.  (The Supremes don't like that.)

Today we have the Arizona case of Eric Mann.  Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.

You Can't Make This Up, Part Eight Zillion

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A prominent legal blog has this entry:  "Why Capital Punishment Is No Punishment at All."  I'll quote the entry verbatim:

Capital punishment has generated an incredible amount of public debate.  Is the practice constitutional?  Does it deter crime?  Is it humane?  Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society's most severe punishment.

In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy.  In fact, it is no punishment at all.  My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished.  By drawing upon the philosophical literature regarding death, I show that this is not the case.  Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.

This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad.  There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation.  By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.

Gads, why hasn't the ACLU thought of this?  Capital punishment is unconstitutional because being put to death is "no punishment at all"!!!

As mentioned in my previous post, there is a second case challenging the death penalty on dubious facts, State v. Villalobos in Maricopa County Superior Court.  The State's opposition to the defense's motion to dismiss is here.

Vince Goddard of the Maricopa County Attorney's Office is seeking further information on cases of supposed innocence on the DPIC's list that really aren't.  If you have useful information and wish to assist, you can email it to NotSoInnocent@crimeandconsequences.com and your email will be forwarded to him.
The opponents have some significant advantages in the death penalty debate.  They have nearly all of academia on their side as well as the bulk of American journalism.  They can assert things as "facts" and rarely get challenged on them. 

A year ago, Justice Breyer wrote a dissent in Glossip v. Gross, saying, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."  What follows is a recitation of all the claims that have already been rebutted but with no mention of the rebuttals.

A funny thing happens on the way to the courthouse.  When these claims are asserted as a basis for a legal argument rather than an attempt to sway public opinion, then a government with the resources to do so makes the contrary case, and the claims regularly go down in flames.  The Supreme Court's decision in McCleskey v. Kemp is remembered (often with outrage on the Left) for holding that even assuming that the Baldus study's finding of race-of-victim bias in capital sentencing was correct McCleskey still didn't have a claim.  Nearly forgotten is the finding of fact by the Federal District Court that the study's data, when correctly analyzed, showed nothing of the sort.  See my 2012 OSJCL article for the details on this and other studies in the area.

The federal capital case of United States v. Fell is now pending retrial in Vermont.  The defense wants the trial judge to declare the federal death penalty unconstitutional, citing all the usual claims.  The court is holding a two-week hearing this week and next to decide the underlying facts.  If the government pulls out all the stops putting on evidence and if we get a fair decision, this could be a major advance for the pro-death-penalty side, with findings of fact that most of the claims cited in Justice Breyer's opinion are actually false.

Wilson Ring has this story for the Associated Press.

There is a second case in Maricopa County (Phoenix and vicinity), Arizona, where the defense has cited the infamous "innocence list" and the prosecution is putting on evidence as to just how many of the supposedly "exonerated" actually did it.

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